N v N (Expert Evidence on Gender Affirming Treatment) [2025] EWHC 1325 (Fam)

[2025] EWHC 1325 (Fam)Case No FD25P00172
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/06/2025
Before
MR JUSTICE MACDONALD
Between
ATN and NTTApplicantsBTNRespondent
Mr Vikram Sachdeva KC and Mr Rhys Hadden (instructed by Sinclairs Law) for ApplicantsMs Deirdre Fottrell KC and Ms Charlotte Baker (instructed by Creighton & Partners Solicitors) for RespondentHearing Hearing dates: 12 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 3 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE MACDONALD
[1]In this matter I am concerned with an application by the parents of BTN. B turned 17 years old in May 2025. The applications before the Court are for orders under the Children Act 1989 and / or the inherent jurisdiction of the High Court. Principally, the parents seek a declaration that B lacks capacity to consent to the medical treatment which she is currently receiving. That treatment comprises Hormone Replacement Therapy (hereafter “HRT”) which, in the present context, fits broadly within the category of “cross-sex hormone” gender affirming treatment.[2]The applicants, ATN and NTT, are represented by Mr Vikram Sachdeva of King’s Counsel and Mr Rhys Hadden of counsel. B instructs solicitors directly and is represented by Ms Deirdre Fottrell of King’s Counsel and Ms Charlotte Baker of counsel. Ms Kay Demery remains appointed as Children’s Guardian to perform the functions under FPR 2010 r. 16.21(2).[3]These proceedings are running in parallel with an application by the father in the Administrative Court for permission to apply for judicial review of the decision of B’s General Practitioner to prescribe HRT to children and young people who seek gender affirming treatment. An anonymity order has been made in those proceedings. On 23 March 2025, I adjourned the application to apply for permission for judicial review to await the determination of the applications in the Family Division. The Administrative Court has now received a further application for expedition of the judicial review proceedings. That application is opposed by the Defendant in those proceedings.[4]This case management hearing is concerned with whether permission should be given, pursuant to s. 13 of the Children and Families Act 2014 (hereafter “the 2014 Act”) for the instruction of expert evidence in these proceedings. All parties submit that it is necessary for permission to be given to instruct an expert endocrinologist to assist the court, although there is a dispute as to the identity of the appropriate expert. The applicants also apply for permission to instruct an expert psychiatrist to assess whether B has capacity to take decisions with respect to HRT and with respect to the psychiatric impact of continuing such treatment. In addition to the applications for permission to instruct an expert psychiatrist and an expert endocrinologist, on behalf of the applicants, Mr Sachdeva and Mr Hadden contend that, in circumstances where this is what they characterise as a “medical treatment case”, the parties should each be permitted to instruct their own experts in those respective fields.

BACKGROUND

[5]For the purposes of determining the case management issues now before the court, the background can be taken shortly.[6]B was born male but identifies as female and did so from a relatively early age. She lives at home with her parents. Within this context, since October 2024, B has been prescribed spironolactone and oestrogen for gender congruency by an NHS GP, by way of what is characterised as a “bridging prescription” pending referral to specialist gender services. This treatment has been provided to B based on a “informed consent” model of care, by which B completed a self-assessment form and forged her mother’s signature on 4 September 2024. By letter dated 14 March 2025, CAMHS has now confirmed to the applicants that a consultant psychiatrist is of the view that B experiences gender incongruence with bodily related distress and has recommended referral to the National Gender Incongruence Service.[7]B’s parents disagree with the General Practitioner’s approach to the treatment of B and the consequent prescription of spironolactone and oestrogen. They contend that B, whilst over the age of 16, lacks capacity to consent to such treatment, arguing that there has been no proper assessment of B’s capacity or a holistic, multidisciplinary, assessment of her overall mental and physical health that would ordinarily precede the treatment that she is receiving.[8]As I have noted, these proceedings are running in parallel with an application by the father in the Administrative Court for permission to apply for judicial review of the decision of B’s General Practitioner to prescribe HRT to children and young people who seek gender affirming treatment. Within those proceedings, B’s parents contend that her treatment is not in accordance with the recommendations of the Cass Review, the relevant guidance to medical professionals or NHS commissioning policy. In particular, the parents rely on NHS England’s current referral pathway for children and young people’s gender services, the Royal College of Psychiatrists’ good practice guidelines for the assessment and treatment of adults with gender dysphoria, the General Medical Council guidelines on trans healthcare, the British Medical Association guidance on the role of GPs in managing adult patients with gender incongruence, and the updated Position Statement issued in March 2025 by the Royal College of General Practitioners concerning the role of GPs in transgender care, which states that:
“For the care for children and young people, the College advises following national guidance and drawing on the recommendations highlighted in the Cass Review. As well as the provision of holistic, context specific, personalised and respectful care as set out above, the RCGP considers the role of the GP in relation to children and young people to include promptly referring, where appropriate, to the appropriate secondary care paediatric or mental health services. The RCGP does not consider that the GP role in relation to children and young people would include prescribing gender affirming hormones to address gender incongruence in a patient aged under 18.”
[9]Within the foregoing context, by an application under Part 25 of the FPR 2010, the parents seek permission to instruct two experts in these proceedings. First, Dr Paul Moran, Consultant Psychiatrist. The parents contend that Dr Moran is the appropriate expert as he has 24 years of continuous practice as a specialist in Gender Psychiatry, co-founded the Irish National Gender Service, and was lead author and developer of the National Gender Service Model of Care, which was accepted by the Irish Department of Health in 2019. The applicants further point to the fact that Dr Moran has provided acute liaison psychiatry for adolescents aged 16 upwards from 2002 to 2025, and was also extensively involved as an expert member of the Cass Review. Second, Professor Jovanna Dahlgren, Paediatric Endocrinologist. The parents point to the fact that Professor Dahlgren is Head of Department, Institute of Clinical Sciences, and Professor and Chief Physician, Department of Paediatrics, University of Gothenburg, Sweden.[10]B, with the support of her Children’s Guardian, opposes the instruction of a consultant psychiatrist as being unnecessary. On behalf of B, Ms Fottrell and Ms Baker contend that there is no evidence that B lacks capacity in the relevant decision making domains, nor that her current treatment has or will result in grave psychiatric or psychological harm to her. Were the court to conclude that the instruction of a psychiatrist is necessary in these proceedings (and making clear that B would refuse to participate in such an assessment if directed), Ms Fottrell and Ms Baker submit that it would not be appropriate to instruct Dr Moran in circumstances where, they contend, the documents before the court demonstrate that he seeks to advance a particular viewpoint on the question of gender affirming treatment. They submit that the appropriate expert would be Dr Richard Eyre, a consultant child and adolescent psychiatrist.[11]Whilst agreeing the need to instruct an expert endocrinologist, B proposes that permission be given to instruct Dr Cotterill, Consultant Specialist in Paediatric Endocrinology based in Brisbane, Australia. Dr Cotterill has been instructed in other cases of this nature in the jurisdiction of England and Wales, including an unreported case before the President of the Family Division, and is able to report within two weeks of receiving his instructions. On behalf of B, Ms Fottrell and Ms Baker submit that Professor Dahlgren should not be instructed as, they contend, articles published by her demonstrate that she has a fixed agenda to advance. B does not oppose her medical records being shared with the endocrinologist instructed to provide an expert report only, and the parents do not seek disclosure of her medical records to themselves.[12]Finally, and as I have noted, the parents submit that “as a matter of equality of arms” the position should be that “each side” should be granted permission to instruct their own experts. Mr Sachdeva and Mr Hadden submit that this approach is “common place” in cases concerning the medical treatment of children and properly reflects the complexity and range of opinion that exists within the area of medicine with which this case is concerned.

RELEVANT LAW

[13]With respect to the wider legal context within which the current case management decision falls to be taken, B is over the age of 16 years. Within this context, s. 8(1) of the Family Reform Act 1969 (hereafter “the 1969 Act”) provides as follows:
“The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.”
[14]No party seeks to dispute, in the present context, that the prescription of spironolactone and oestrogen to children and young people who seek gender affirming treatment constitutes medical treatment for the purposes of s.8(1) of the 1969 Act. Pursuant to s.8(1) of the 1969 Act, as a 17-year-old young person B is competent to provide effective consent to that medical treatment as if she were an adult and in the absence of consent by her parents (see In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 1 FLR 1 at [16]).[15]As with an adult, those medical professionals providing B with medical treatment must decide whether or not she has capacity within the meaning of the Mental Capacity Act 2005 (hereafter “the 2005 Act”). Section 1(2) of the 2005 Act contains a presumption of capacity and s.1(4) provides that B is not to be treated as unable to make a decision merely because she makes an unwise decision. In PC & NC v City of York [2013] EWCA Civ 478, the Court of Appeal noted at [54] that:
“...there is a space between an unwise decision and one which an individual does not have the mental capacity to take.... it is important to respect that space and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.”
[16]In the foregoing circumstances, and relying on An NHS Trust v X [2021] EWHC 65 (Fam) at [55], this court summarised the effect of the wider legal framework in the context of which the best interests decision before the court falls in GK v EE [2023] EWCOP 49 at [49], a case in which the parents of a young person sought to prevent gender affirming treatment to a young person over the age of 16:
“Accordingly, unless the presumption of capacity from which EE benefits under s.1(2) of the 2005 Act is rebutted, whilst under the age of 18 EE is able to give effective consent to lawful gender affirming medical treatment pursuant to s.8 of the Family Law Reform Act 1986 in circumstances where they are over the age of 16...Once over the age of 18, unless the presumption of capacity under s.1(2) of the 2005 Act is rebutted, EE is able to give effective consent to lawful gender affirming medical treatment as a capacitous adult.”
[17]Finally, and crucially in the context of deciding whether it is necessary to give permission to instruct an expert consultant psychiatrist and / or an expert consultant endocrinologist, the ability of a young person over the age of 16 to give effective consent as to medical treatment is not absolute, as court retains a welfare jurisdiction to override that consent in certain circumstances (Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64. The circumstances in which a court may override consent were expressed by Nolan LJ in Re W (A Minor) (Medical Treatment: Court's Jurisdiction) to be, specifically, where it is necessary for the court to intervene to protect the child or young person from “grave and irreversible mental or physical harm”. Thus, as made clear by the President of the Family Division in O v P [2024] EWCA Civ 1577 at [46], the court’s best interests jurisdiction is not, in this context, a general welfare jurisdiction. In deciding whether it is in the child or young person’s best interests to override their consent, it was further made clear in Re W (A Minor) (Medical Treatment: Court's Jurisdiction) that in determining whether to exercise its jurisdiction to do so, the court will take particular account of the child or young person’s wishes, the importance of which will increase with his or her age and maturity.[18]In the foregoing context, in O v P at [2], the Master of the Rolls summarised the overall legal position as follows (emphasis in the original):
“It is useful at the outset to distinguish between three possible issues with which the courts have to deal. First, there is the issue of whether a child under 16 is competent to consent or to refuse medical treatment (see Gillick v West Norfolk and Wisbech AHA [1986] AC 112 (Gillick), and more recently R(Bell) v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416 (Bell v Tavistock). Second, there is the issue of whether a child (but also an adult) has mental capacity to consent to or to refuse medical treatment (see sections 1-6 of the Mental Capacity Act 2005). Thirdly, there is the issue of what is in the child’s best interests. This issue arises once the presumption as to competence of a child over 16 to consent or refuse medical treatment is engaged (see section 8 of the Family Law Reform Act 1969 (FLRA 1969), which provides that a child over 16 can give consent in the same way as an adult, and not further consent is required from parents or guardians). Despite section 8, the court still retains the right to override consent given or withheld by a child over 16 on welfare or best interests grounds in very limited and well defined circumstances (see Re W (A Minor)(Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 (Re W).”
[19]Turning to the relevant legal principles governing the instruction of experts, the parents’ applications in respect of B are brought under the Children Act 1989 and the inherent jurisdiction of the High Court. The proceedings in respect of B are therefore “children proceedings” as defined by r.25.2(1) and r.12.1 of the FPR 2010. In these circumstances, the applications for expert evidence before the court fall to be determined according to the statutory framework contained in s. 13 of the 2014 Act and Part 25 of the FPR 2010.[20]Section 13 of the 2014 Act controls the use of expert evidence in children proceedings. Section 13 of the 2014 Act provides as follows, in so far as is relevant for present purposes:
“13 Control of expert evidence, and of assessments, in children proceedings (1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings. (2) Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible. (3) A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings. (4) Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible. (5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court. (6) The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. (7) When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to— (a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed, (b) the issues to which the expert evidence would relate, (c) the questions which the court would require the expert to answer, (d) what other expert evidence is available (whether obtained before or after the start of proceedings), (e) whether evidence could be given by another person on the matters on which the expert would give evidence, (f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings, (g) the cost of the expert evidence, and (h) any matters prescribed by Family Procedure Rules. .../” (a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed, (b) the issues to which the expert evidence would relate, (c) the questions which the court would require the expert to answer, (d) what other expert evidence is available (whether obtained before or after the start of proceedings), (e) whether evidence could be given by another person on the matters on which the expert would give evidence, (f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings, (g) the cost of the expert evidence, and (h) any matters prescribed by Family Procedure Rules. .../”
[21]Pursuant to FPR 2010 r.25.11(1), where two or more parties wish to put expert evidence before the court on a particular issue, the court may direct that the evidence on that issue be given by a single joint expert in accordance with the provisions of r.25.12, FPR 2010. Paragraph 2.1 of FPR 2010 PD 25C identifies that, wherever possible, expert evidence should be obtained from an expert jointly instructed by both or all the parties. Mr Sachdeva and Mr Hadden submit that in cases concerning the medical treatment of children it is the practice to allow a second opinion as a matter of course. They cite a number of cases where this has occurred on the facts of the case in question.[22]In this case, it is proposed that the expert or experts instructed are drawn from overseas jurisdictions. In such circumstances, the court must have regard to the 2011 Guidelines for the Instruction of Medical Experts from Overseas in Family Cases. The Guidelines make clear that foreign experts must be instructed in accordance with FPR 2010 Part 25.

DISCUSSION

[23]Having considered carefully the written and oral submissions, I am satisfied that it is necessary for the court to give permission to instruct an expert endocrinologist, and that the expert instructed should be Dr Cotterill. I am further satisfied that the endocrinologist should be instructed by way of a single joint instruction on the basis of the questions I set out below. I am not satisfied that it is necessary to instruct an expert psychiatrist on either the issue of capacity or the issue of best interests. My reasons for so deciding are as follows.[24]In determining whether it is necessary for this court to give permission to instruct a consultant psychiatrist and / or a consultant endocrinologist in order to resolve the proceedings justly, it is important to maintain a careful focus on the issue that this court is required to decide.[25]It is readily apparent from the material before the court that the applicants wish the court to examine wider questions of policy with respect to gender affirming treatment, including those they contend arise from the Cass Review and the “implementation” of the recommendations in that Review. That is not the role of this court. As confirmed by the Court of Appeal in O v P, matters of policy concerning gender affirming treatment are the province of the NHS, the medical profession, the regulators and Parliament. This case is not a forum for determining wider political, social or philosophical questions arising from such treatment, nor will it be permitted to become such a forum. This court is concerned only with the best interests of B, in so far as they are engaged by the applications made by the parents.[26]The issue that this court is required to decide is whether it is in B’s best interests to continue, or to stop, receiving the HRT treatment currently prescribed to her by her General Practitioner, the latter decision involving overriding B’s consent to such treatment given under s.8 of the 1969 Act. In determining the issues before it, the court will ask itself whether B’s best interests require the court to intervene to protect B from “grave and irreversible mental or physical harm”. It is this question that informs the extent to which it is necessary to instruct a consultant psychiatrist and / or a consultant endocrinologist in order to resolve the proceedings justly.

Expert Psychiatrist

[27]The applicants advance their argument that a report from an expert psychiatrist is necessary on two bases. First, that B lacks capacity in the relevant decision making domains. Second, that in determining whether it is in B’s best interests to continue or to cease HRT, the court needs to understand the psychological and / or psychiatric impact on B of one or other of those steps being taken, in circumstances where the court’s jurisdiction to override her consent is narrowly founded on the question of whether an order is necessary to protect B from grave and irreversible mental or physical harm.[28]With respect to the question of capacity, at the last hearing the court made clear to the applicants that they needed to set out the evidence on which they rely in order to demonstrate that B lacks capacity in the relevant decision-making domains. Beyond an assertion in the father’s statement that conversations with B raise in the father “concerns” about B’s mental health and “doubts” as to whether B:(i) has been provided with all relevant information, including all material risks and alternative treatment;(ii) her ability to understand, use or weigh that information considering a “fixed viewpoint” on the issue, no such evidence has been forthcoming.[29]Against such assertions, in these proceedings B now directly instructs her solicitor, who is satisfied that she has litigation capacity. As I have noted, B also has the benefit of a CAFCASS Guardian. Ahead of this hearing, her solicitor and Children’s Guardian met with B. Whilst I did not hear evidence on the point from the Children’s Guardian, in their Position Statement Ms Fottrell and Ms Baker set out the view of the solicitor and of the Children’s Guardian that B is eloquent, articulate, well-presented and sensible and does not resemble the father’s description of her in the evidence filed to-date. During the course of her oral submissions, which the applicants did not attempt to gainsay, Ms Fottrell relayed that B is committed to her education and is taking A levels in chemistry, biology and French. Within this context, B wished the court to know that she finds it insulting that her ability to investigate treatments, understand them and act responsibly with the assistance of her General Practitioner in relation to her medical treatment is being questioned by a small group of individuals, including her parents, who have taken her to court in an effort to stop her treatment. B further emphasises that the law gives her permission to make her own decision and that is what she has done. Ms Fottrell informed the court that it is difficult to convey B’s strength of feeling that her personal story has become highly politicised. B told the Children’s Guardian that “I live in two opposite worlds, one in my household where I am seen as less than and the other outside the home where I am calm and grounded.”[30]Within the foregoing context, the overall assessment of the Children’s Guardian is that B is a mature and measured young person who has thought deeply about her situation and want she wants from life, and did not start taking HRT lightly. As I have noted, B has been assessed by Mr McGovern as competent to instruct her own solicitor in these proceedings. Ms Demery entirely concurs with that assessment and does not consider it necessary to seek a capacity assessment of B. Whilst this case turns on its own facts, I note the observation of the Master of the Rolls in O v P at [3] that in circumstances where, in that case, the young person in question was agreed to be “impressive, hardworking and intelligent” with no mental health problems, questions as to the young person’s mental capacity were unlikely to arise.[31]I acknowledge that the documents before the court evidence B as having had some involvement with CAMHS due to depression and possible ASD. However, the letter of 14 March 2025 from CAMHS confirms, for present purposes, that a consultant psychiatrist is of the view that B experiences gender incongruence with bodily related distress and has recommended intervention from the National Gender Incongruence Service. There is no cogent evidence that B has mental health difficulties to an extent that would impact on her capacity.[32]On the face of it, whenever a parent brings an application before the court asserting that a young person lacks capacity in the context of s.8(1) of the 1969 Act, there will be an “issue” as to capacity. That is not however, by itself, sufficient to meet the test of necessity. In the context of the presumption of capacity in s.1(2) of the 2005 Act, for an expert report to be considered necessary for the purposes of s.13 of the 2014 Act there must be at least some prima facie evidence that the young person in question may lack capacity in the relevant decision-making domains before the court will consider an expert report as to capacity to be necessary to determine the proceedings justly. To hold otherwise would be to undermine the presumption of capacity in s.1(2) of the 2005 Act. There is no such prima facie evidence in this case.[33]In support of the parents’ application for permission to instruct an expert psychiatrist, Mr Sachdeva and Mr Hadden further submit it would be a too narrow approach to exclusively focus on the physical impact of any hormone treatment via the assessment of an endocrinologist and that, in determining the question of best interests, and whether it is necessary in this case to override B’s consent to protect her from grave and permanent harm, the court will need expert assistance on the psychiatric consequences of continuing with gender affirming treatment or withdrawing it, which are an essential component of the Court deciding what course of action is in B’s best interests. I am not persuaded by that submission.[34]The parents’ argument that the psychiatric consequences of, as they put it, “continuing with an inappropriate, negligently given, life altering treatment or withdrawing it” are an essential component of the Court deciding what is in B’s best interests, is based solely on their view that the fact of B’s gender incongruence (as now assessed by CAMHS) and the “bridging prescription” she receives, amount to prima facie evidence of grave and permanent psychiatric harm necessitating an expert psychiatric report. However, beyond the parents’ strongly held view of what they see as the inevitable result of the treatment B is receiving, there is currently no cogent evidence before the court suggesting that B is suffering, or is likely to suffer, grave and irreversible psychiatric harm such that the court needs an expert psychiatric assessment of her in order to determine her best interests. Indeed, the letter of 14 March 2025 from CAMHS confirms that a consultant psychiatrist is of the view that B experiences gender incongruence with bodily related distress and has recommended intervention from the National Gender Incongruence Service. The assessment of Children’s Guardian is that, save for the stress caused by the litigation of these proceedings, B is generally happy and doing well in school. She does not have a forensic history of significant mental health issues and has had limited and appropriate interactions with CAMHS.[35]In these circumstances, the parents’ submission regarding the need for psychiatric evidence to inform the best interests decision amounts to contending that expert evidence is necessary to assist the court to determine whether B has been misdiagnosed and / or whether gender affirming treatment is psychiatrically harmful generally. There is no evidence to support the former contention. Once again, the evidence in the form of the recent communication from CAMHS reinforces the basis on which her current prescription of HRT is said by her General Practitioner to be justified. With respect to the latter contention, the court is concerned with impact on B of continuing or ceasing gender affirming treatment and not with the psychiatric or psychological consequences of gender affirming treatment generally. B herself does not seek permission for expert psychiatric evidence on the impact on her mental health of ceasing HRT treatment, and I am satisfied that the court can take judicial notice of the fact that, on the evidence before the court, such impact is likely to be a negative one when viewed from B’s perspective.[36]Finally, s. 13 of the 2014 Act requires the Court to consider the permission for expert evidence with regard to the impact on the welfare of the subject child. I accept the submission of Ms Fottrell that it would have an adverse impact on B’s welfare to direct an assessment that she is vehemently against, and for her to know that there is a psychiatrist considering deeply personal elements of her life before writing a report to be sent to the court in circumstances where there is no evidence that she suffers from a psychiatric illness or lacks capacity in the relevant decision-making domains.[37]In the foregoing circumstances, I am not satisfied that it is necessary for the court to give permission to instruct an expert psychiatrist in order to resolve these proceedings justly and I decline to do so.

Expert Endocrinologist

[38]As I have noted, all parties contend that it is necessary for the court to have the assistance of a consultant endocrinologist in order to determine the proceedings justly. I agree. In contradistinction to their being no evidence that B lack’s capacity in the relevant decision-making domains or that B is suffering or is likely to suffer grave and irreversible psychiatric harm were her treatment to continue, the evidence before the court demonstrates that B is currently receiving HRT in the form of spironolactone and oestrogen. The parents seek to prevent B from continuing with that treatment. Within this context, the court does not have expertise on the benefits and risks of HRT used as “cross-sex hormone” gender affirming treatment. Further, the court has no expertise on the benefits and risks of ceasing such treatment after it has commenced, or of continuing such treatment once it has commenced. In the circumstances, I concur that it is necessary for the court to have the assistance of an expert endocrinologist.[39]The issue between the parties is the identity of the appropriate expert endocrinologist. As I have noted, the parents seek permission to instruct Professor Jovanna Dahlgren, Head of Department, Institute of Clinical Sciences, and Professor and Chief Physician, Department of Paediatrics, University of Gothenburg, Sweden. On behalf of B, Ms Fottrell and Ms Baker propose that permission be given to instruct Dr Cotterill, Consultant Specialist in Paediatric Endocrinology based in Brisbane, Australia and qualified in England and Wales. Having compared the two experts proposed, and recognising the distinguished qualifications and experience of each, I am satisfied that Dr Cotterill should be instructed to provide the expert endocrinological report.[40]Dr Cotterill has experience of being instructed in other cases of this nature in the jurisdiction of England and Wales, including an unreported case before the President of the Family Division. Dr Cotterill is able to report within two weeks of receiving his instructions. I also bear in mind that it is easier to divine from Dr Cotterill’s CV his relevant clinical experience than it is from that of Professor Dahlgren. In particular, Professor Dahlgren’s current clinical experience is not immediately apparent from her CV, as compared to her impressive academic standing. Whilst not determinative, in circumstances where it is B above all others who will have to live with the consequences of what this court decides and that it is important for her to have faith in this process, I also bear in mind that Dr Cotterill is B’s preferred choice. In circumstances where Dr Cotterill is based in Brisbane, in reaching my conclusion I have had regard to the principles set out in the 2011 Guidelines for the Instruction of Medical Experts from Overseas in Family Cases.[41]It is not necessary for me to pass comment on the submission made on behalf of B that the publications of Professor Dahlgren evidence a fixed view with respect to the issues before the court, save to observe that, once again, the issue before the court is the impact on B of continuing or ceasing gender affirming treatment and not the merits and consequences of gender affirming treatment generally. Whilst Mr Sachdeva and Mr Hadden submit that apparent interest in the outcome of the proceedings in which the expert gives evidence is not automatically a precondition to the admissibility of his or her evidence in court, relying on Factortame Ltd v SSETR [2002] EWCA Civ 932 at [70], having regard to the issues in this case I am satisfied that the court is best served by expert evidence it can be confident will concentrate on the science and medicine of HRT as a gender affirming treatment for B, rather than on the wider social, political and philosophical question of the merits of gender affirming treatment generally. An expert who focuses on the relevant science and medicine and its impact or otherwise on the subject child, rather than on the wider social, philosophical and political context in which that science and medicine is developing, is likely to be of most assistance to the court, having regard to the role of a jointly instructed expert and the duties of that jointly instructed expert under FPR 2010 Part 25. None of this is to impugn the work of Professor Dahlgren and her informed point of view, but rather simply to prefer the expertise and clinical focus of Dr Cotterill on the facts of this case.[42]I am not satisfied that it is appropriate in this case also to give permission to the parents to instruct their own expert endocrinologist. Pursuant to FPR 2010 r.25.11(1), where two or more parties wish to submit expert evidence on a particular issue the court may direct that the evidence on that issue be given by a single joint expert in accordance with the provisions of r.25.12, FPR 2010. Whilst FPR 2010 r.25.11(1) is permissive in its terms, Paragraph 2.1 of FPR 2010 PD 25C emphasises the desirability of the court hearing from a single joint expert by stipulating that, wherever possible, expert evidence should be obtained from an expert jointly instructed by both or all the parties.[43]I am not able to accept the submission of Mr Sachdeva and Mr Hadden that cases concerning the medical treatment of children form a special category in which it is the practice to allow a second opinion as a matter of course. Whilst they are able to identify a number of cases which, on the facts of those cases, have resulted in the court acceding to a second expert, there is no provision in the rules mandating such an approach in specified categories of case and no authority was cited to the court in support of such a general principle. In the circumstances, the test for a second expert on the same area of expertise remains that of necessity for the purposes of s.13 of the 2014 Act. It is almost axiomatic that such a test falls properly to be applied after the receipt of the relevant jointly instructed expert report. Accordingly, if following the receipt of the report of Dr Cotterill, the parents can demonstrate that a second opinion is necessary having regard to the issue the court is required to decide, it is open to them to make an application to that end.[44]Finally, there is also an issue between the parties as to the scope of the questions to be put. In keeping with the parents tendency to seek to examine wider questions of policy and principle arising from gender affirming treatment, including those they contend arise from the Cass Review and the “implementation” of the recommendations in that report, the questions as drafted by the parents go somewhat wider than I consider is necessary to enable the court to resolve the issue before it justly. To repeat, the issue before the court is the impact on B of continuing or ceasing gender affirming treatment and not the merits and consequences of gender affirming treatment generally.[45]In the circumstances, I am satisfied that the following questions fall to be addressed in the report of the expert endocrinologist: i) What are the benefits, if any, and the risks, if any, to B of the HRT treatment she is currently receiving for gender incongruence? ii) What are the benefits, if any, and the risks, if any, to B of continuing HRT treatment having regard to the nature and extent of the treatment she has received to date and / or otherwise? iii) If the court were to conclude that it is in B’s best interests to continue to receive HRT treatment, how should such treatment be optimally managed? iv) What are the benefits, if any, and the risks, if any, to B, of ceasing HRT treatment having regard to the nature and extent of the treatment she has received to date and / or otherwise? v) If the court were to conclude that it is in B’s best interests to cease HRT treatment, what is the appropriate timescale over which HRT should be withdrawn and how should that withdrawal be managed? vi) Please comment on any other matter within the compass of your expertise that you consider relevant to the court’s determination of these proceedings.

CONCLUSION

[46]In conclusion, I shall give permission for the single joint instruction of Dr Cotterill, consultant endocrinologist, to provide the court with the answers to the questions set out above. I will ask leading and junior counsel to draw an order accordingly.[47]Finally, and to repeat, this case is and always will be about only one thing. Namely, B’s best interests. This is not, as it has been described in some correspondence the court has seen, a “landmark” case. It is already difficult for a young person when their parents decide to engage lawyers and commence litigation as a means of challenging their choices. Those difficulties can only be enlarged if attempts are made to use such already emotionally charged family litigation as a collateral means of addressing matters of policy with respect to gender affirming treatment that are properly the province of the NHS, the medical profession, the regulators and Parliament. The court will not permit that to happen.

Cited in 1 later judgment