JUDGEMENTS, GENDER AND THE FAMILY COURT 

Published on 14 May, 2024 | Michael Swanick

The workload undertaken by family courts across England and Wales is both immense and incredibly varied.

During 2023, they dealt with just over a quarter of a million new cases (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#main-points).

Each and every one has the potential to impact the lives of those involved for many years to come, not least the kind of private proceedings relating to care arrangements for children which made up roughly 20 per cent of last year’s total.

Despite the sheer volume of matters which they’re asked to adjudicate, however, no-one should be in any doubt as to the lengths which the court staff, judges, experts and lawyers go to in order to arrive at an outcome which is as fair as possible.

That much is clear from just one recent case presided over by Mrs Justice Judd

(https://www.judiciary.uk/wp-content/uploads/2024/05/O-v-P-Final-Approved-Judgment.pdf).

It concerned a 16-year-old child who was born female but told his divorced parents that he was transgender and wanted to identify as male.

Since their separation, the court was told, the parents’ relationship had been “acrimonious”.

Whilst the father had accepted his child’s decision, the mother did not. She instead applied for something known as a Prohibited Steps Order (PSO) to prevent her former husband allowing their child to access treatment for gender dysphoria.

Furthermore, she claimed that her child had autism and did not fully comprehend the implications of the treatment.

Even though applications for PSOs are a relatively common feature of children law work, matters of the nature in this case do not come before the courts frequently.

Prohibited Steps Orders are sought in order to prevent something happening. Usually, they are applied for to stop one parent either taking a child abroad or pursuing medical treatment, including surgery and vaccinations for the likes of measles, mumps or rubella (MMR) or Covid-19.

The number of PSO applications could be said to indicate the amount of parental disputes in these kind of matters.

Figures published by the Ministry of Justice (MoJ) show that there were 12,771 applications made last year – up just over 16 per cent on the number (10,998) in 2013.

In cases such as those deliberated on by Mrs Justice Judd, there is usually an emphasis on the input of parents and expert witnesses.

Nevertheless, it is also generally accepted that the older the child, the greater the weight that is afforded to their opinions.

That is due to a near 40-year-old House of Lords’ ruling which hinged on the comprehension which children have about medical treatment which they may be subjected to.

In that judgement, Lord Scarman observed: “It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law” (https://www.bailii.org/uk/cases/UKHL/1985/7.html).

To that guidance can be added the importance of meeting the fundamental element of the most relevant law – the Children Act 1989 – which states clearly that “the child’s welfare shall be the court’s paramount consideration”

(https://www.legislation.gov.uk/ukpga/1989/41/section/1#:~:text=the%20child’s%20welfare%20shall%20be,the%20welfare%20of%20the%20child).

I believe that Mrs Justice Judd illustrates how far family courts really are prepared to go to ensure that is the case, regardless of the amount of work that they are confronted with or the sensitivity.

She describes having met with the child in question as part of the process of determining the best possible course of action.

It should be said that as much as the efforts of the family court in this case were, in my opinion, exemplary, there is an accepted wisdom that court should still only be the last resort for this or any other type of dispute about children or the financial aspects of divorce.

As my colleague Sky Langwieser wrote on this ‘blog recently, new rules came into force only last month to try and convince people about the merits of the various types of dispute resolution (https://hallbrown.co.uk/the-good-divorce-common-sense-conflict-and-dispute-resolution/).

Anything which can be done to defuse disagreements and enable families to move on with their lives is surely in everyone’s best interests.