O v P & Anor (No.2) [2025] EWHC 718 (Fam)

[2025] EWHC 718 (Fam)Case No EX22P00295
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 26/03/2025
Exeter Combined Court Centre
Southernhay Gardens, Exeter, EX1 1UH
Before
THE HONOURABLE MRS JUSTICE JUDD
Between
OApplicantP1 st RespondentQ2 nd Respondent
Rhys Hadden (instructed by Sinclairs Law) for ApplicantDeirdre Fottrell KC and Tom Wilson (instructed by Irwin Mitchell) for 1 st RespondentDorothea Gartland KC and Andrew Powell (instructed by Goodman Ray Solicitors) for 2 nd RespondentHearing Hearing dates: 14 th March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 26 th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MRS JUSTICE JUDDThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]This is my judgment in relation to disclosure applications in this long running case. The proceedings concern a young person (Q) who seeks gender treatment. He is now almost 17. I made a decision last year (which is reported as O v P & Q [2024] EWHC 1077 (Fam)) that proceedings should be brought to an end in order to allow decisions as to future treatment to be made as between the young person and clinicians treating him at a private clinic registered in England known as Gender Plus.[2]The Court of Appeal overturned my decision to bring the proceedings for the reasons that were set out in the judgment at O v P & Q [2024] EWCA Civ 1577. Their order provided for the proceedings to be restored to me following the completion of the assessment at Gender Plus in the event that there was a dispute between the parties.[3]In the event the mother sought to restore the proceedings to me following the decision of the Court of Appeal. By that time the Administrative Court had granted permission for there to be a judicial review of the decision by the CQC to register the Gender Plus clinic. Also, the mother had discovered via social media that, with the full knowledge of the father and contrary to court orders, Q had been taking puberty blockers and hormones prescribed by Gender GP, a private online clinic registered and based in Singapore, since the summer of 2023. The proceedings before this court and the Court of Appeal had taken place on a false premise.[4]At my request the father filed a statement setting out his explanation as to how this had happened. He said that the delay in being able to access treatment had been very detrimental to Q, and that he had decided to allow him to engage with Gender GP (and to pay for his treatment) because he was very worried about his mental health and wellbeing.[5]Within these proceedings the mother is seeking for the court to make decisions as to whether continuing hormone treatment is in Q’s best interests. She is now particularly concerned that he is being treated via an unregulated and offshore organisation.[6]In order to inform her case, she seeks disclosure of a number of documents. First, she seeks disclosure of the report following the assessment at Gender Plus. Second, she seeks disclosure of the medical records from the assessment. Third, she seeks the medical records from Gender GP and fourth, the name of the pharmacy (or pharmacies) which is providing the hormone prescriptions issued by Gender GP.[7]The medical records from Gender GP are not yet available. The records from Gender Plus have only just been received by Q’s legal team. It is accepted that I cannot make a decision about those today.[8]Finally, the mother seeks permission to disclose information relating to these proceedings into a different claim for judicial review which seeks to overturn the government decision that hormone treatment can be provided to under 18s by private clinics. She seeks to provide a witness statement to the Administrative Court in support of that application. She has filed a draft for this court to consider.[9]Q objects to all of the disclosure. He objects to any of the Gender Plus report being provided to his mother. As a second position, he proposes that a few extracts of the report are disclosed to her. He objects to his mother being able to disclose information into the Judicial Review proceedings and raises doubts about her motives. The father supports Q in every respect.[10]The application for disclosure of the Gender Plus report is supported by the previous Guardian The current Guardian (who is not legally represented as public funding is not available), is new to the case and did not take a stance, albeit she commented that she found the views of the previous guardian persuasive. The law[11]I am very grateful to all the parties for their skeleton arguments setting out the law in relation to disclosure in proceedings such as this.[12]When considering the question of disclosure of information/documents the first test is one of relevance. In Durham County Council v Dunn [2012] EWCA Civ 1654 (Maurice Kay, Munby and Tomlinson LJJ) it was stated at §23 that: “First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include "train of inquiry" points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity”.[13]The Article 8 rights under the European Convention on Human Rights (“ECHR”) of Q are clearly engaged. Adult or child, medical information is in a category which attracts a very high degree of privacy. Q is almost 17 years old, and there is no question that he has capacity to make decisions about sharing his personal information The issues covered by the report are of a highly sensitive nature. By contrast, a parent does not have corresponding Article 8 rights to be given confidential information about a child with capacity, on the basis that he is deemed able to look after himself or make his own decisions: R (On the application of Axon) v Secretary of State for Health and Anor [2006] EWHC 37 (Admin).[14]A child’s Article 8 rights must also be looked at through the prism of the UN Convention on the Rights of a Child (“UNCRC”) Article 3(1).[15]The mother does, however, have a right to a fair trial pursuant to Article 6 of the ECHR. In the normal course of events this would mean she is entitled to disclosure of relevant documents. Nonetheless, the courts have made it clear that this does not mean that she has an absolute and unqualified right to see all the documents in the case. In Re B (Disclosure to Other Parties)[2001] 2 FLR, Munby J said this at §67:
“So, a limited qualification of R’s right to see the documents may be acceptable if it is reasonably directed towards a clear and proper objective – in other words, if directed to the pursuit of the legitimate aim of respecting some other person’s rights under Art.8 – and if it represents no greater a qualification of R’s rights than the situation calls for. There may accordingly be circumstances in which, balancing a party’s prima facie Art.6 right to see all the relevant documents and the Art.8 rights of others, the balance can, compatibly with the Convention, be struck in such a way as to permit the withholding from a party of at least some of the documents. The balance is to be struck in a way which is fair, and which achieves a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, having regard to the nature and seriousness of the interests at stake and the gravity of the interference with the various rights involved.”
[16]The test for determining proportionality was set out by Lady Hale in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (at §33) (“the Tigere tests”), namely:
“(i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure be used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”
[17]Disclosure of information may be refused if it would cause significant harm to a child. In T (Children: Non-Disclosure) [2024] EWCA Civ 241, Peter Jackson LJ set out the principles to be applied as follows:
“22. A court that is asked to authorise non-disclosure in the interests of a child should therefore ask itself these questions: (1) Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them? (2) Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability? (3) Can the feared harm be addressed by measures to reduce its probability or likely impact? (4) Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure? (5) Where the child's interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances? (6) Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?” (1) Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them? (2) Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability? (3) Can the feared harm be addressed by measures to reduce its probability or likely impact? (4) Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure? (5) Where the child's interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances? (6) Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?”
This case[18]I have read all of the parties’ submissions, as amplified during the course of the hearing albeit I will not set them all out in this short judgment. I make it clear that I accept the first five propositions at paragraph 31 of Ms. Gartland KC and Mr. Powell’s skeleton argument, namely that Q is competent, now separately represented, and legitimately wishes to exercise some control over who can and cannot see his confidential and sensitive medical information. Each case must be considered on its own facts, and the court must undertake an analysis of the information under consideration before making a decision.[19]The Court of Appeal decided that the parties should retain the right to apply to the court in the event of a dispute as to whether or not it is in Q’s best interests to have treatment following the completion of the assessment at Gender Plus. The mother has applied back to the court for that issue to be determined, particularly in the light of the information that it transpires he has been receiving treatment for over two years.[20]Having read the whole of the report from Gender Plus it is clear to me that all of it is relevant to the issue that is before the court. Ms. Gartland KC and Mr. Powell did not seriously seek to suggest otherwise.[21]There is no doubt that the information in the assessment is highly personal and private, but I would not describe the material in it as exquisitely sensitive so far as Q and his mother are concerned. The information in the report has been read by the legal teams, the father, myself, the previously allocated Guardian and the current Guardian. The only people who have not read it are the mother and her own legal team. The report is very informative as to the process that Q has undergone, and his thinking about his situation going back many years.[22]Ms. Gartland KC and Mr. Powell submit that disclosure of the material in the report would involve a real possibility of significant harm to Q. They argue that his mental health has been badly affected, not only because of gender dysphoria, but as a result of his mother’s opposition to treatment and the length of these proceedings. Poor mental health caused him to miss school and affected his performance in exams and any further disclosure as well as the resumption of proceedings is likely to continue and exacerbate this. The only reason that the father allowed Q to obtain treatment from Gender GP in breach of court orders was because his mental health was suffering so much. On behalf of the father, Ms. Fottrell KC adopted and agreed with this submission.[23]Whilst I do not seek to underestimate the distress Q will undoubtedly feel if the report is disclosed to his mother, I do not accept that it would involve a real possibility of his suffering significant harm. The report itself notes that his mental health is stable (albeit I accept that this was not written in the expectation of further litigation). The previous Guardian, who met Q on several occasions, has said that he was not informed about any deterioration in Q’s mental health, and that neither he nor the father sought any help from his GP or CAMHS. Q did very well in his GCSEs. The evidence is that he is a resilient young person, which is very much to his credit.[24]Turning to the question of welfare, I appreciate that Q is concerned about his mother’s motives in seeking disclosure and what use his mother may make of the material. I have been dealing with this case over a considerable period of time, including a time when both parents represented themselves, so I have engaged directly with them. It is true that I was completely unaware of the fact that Q, with his father’s knowledge, was undergoing treatment without telling anyone, so judges, just as anyone, can be deceived. Nonetheless, I have never formed the view that the mother’s motives in this case were anything but trying to further the best interests of her child and to protect him. It is her experiences in this regard which have led her to engage in issues of transgender treatment more generally, and not the other way around.[25]I do not find that her wish to file a statement in the Judicial Review proceedings to be motivated by anything more than this. In any event, this court can control the dissemination of information from the proceedings.[26]The disadvantage for Q, so far as his welfare is concerned, is that he will suffer distress and frustration if the document is disclosed, which is likely to spill over into his daily life and affect his schoolwork. He is very hurt by his mother’s actions, and this would be exacerbated. There are also some advantages in disclosing the material to his mother, however, even though Q cannot see that at present. The report gives some very helpful information about his thinking about his gender over the last few years, and also of the work that has been done with him. The report may fill some gaps in understanding for the mother. Whilst I appreciate that it may pose questions for her as well as answers, I would not rule out the possibility that it will also provide some reassurance as to the extent of the assessment that has taken place. I cannot say more than that, but I note that those who conducted it were willing to meet with the mother, should she be willing.[27]A refusal to disclose the report is most unlikely to have the consequence that Q most wants, namely that the proceedings come to an end.[28]There is another potential advantage to Q in his mother seeing the report. The effect of hormone treatment on the developing teenager (as opposed to adults) is still the subject of debate and further research. Q’s father has attended some appointments, and I have read about some of the contributions he has made which will have been helpful. Nonetheless, it is apparent to me (not least by his stance in relation to this disclosure application) that for the most part he does not seek to challenge Q. If there are flaws or dangers in the plan, or if Q is (like many teenagers) too impatient or headstrong for his own good, the father is not likely to put his head over the parapet and be protective rather than simply supportive. The mother is.[29]In all the circumstances, it is my view that disclosure of the report would promote, rather than detract from, Q’s welfare.[30]In coming to a decision about disclosure I take into account all of the matters set out above, and must ultimately balance the Article 8 rights that Q has to respect for his private and family life as against the mother’s right to a fair trial of the matters she asks the court to determine, namely whether orders should be made with respect to his medical treatment. Is it necessary and proportionate to disclose all of the report, containing the very private information it does, or could the legitimate aim of protecting the mother’s Article 6 rights be achieved without it, or by redacting some of it?[31]I have considered the secondary submission made on behalf of Q for short extracts from the report to be disclosed and no more. But these are extremely limited and go to little more than the conclusions and proposed plan. If the mother read this alone I think it will make her even more anxious about Q’s welfare than she already is, with consequent effects on these proceedings. It is in the body of the report that the reader gains an understanding of the assessment process, what ground has been covered, what issues have been raised, what Q’s belief and knowledge is, and why he wishes to have more treatment.[32]Ms. Fottrell KC properly submitted that I should look through the document with a notional ‘red pen’ to see what really needs to be left in and what does not. I have done this with care, but simply do not see how the mother could engage the proceedings or to put forward a case to the court without reading all of it. Some redactions as to names and the odd sentence here or there has already been blanked out from my own copy. I agree that, subject to any further submissions from the mother’s team, names do not need to be there, and the remaining redacted parts do not appear to relate to anything particularly salient. Apart from this I have come to the conclusion that the whole of the report needs to be disclosed. There are some parts of the report which might be harder for Q to have his mother see than others (e.g. those which relate to sexual function following treatment) but they are generic rather than personal. In any event, it is important for the mother to see.[33]In coming to this decision I have borne very much in mind how Q will feel about this, and the invasion of his right to privacy this will entail. Nonetheless, such an interference is necessary and proportionate to the legitimate aim that exists. Disclosure of information into the Judicial Review proceedings[34]The mother has a qualified right to freedom of expression pursuant to Article 10 EHCR, and a right to involve herself in proceedings should she wish to do so. Much of the information in the mother’s statement is already in the public domain through my original judgment and the judgment of the Court of Appeal. The publication of this judgment will provide a little more. Everything is fully anonymised, as would be the proposed statement for the judicial review proceedings. To that extent the interference with the rights of others by the publication of such a statement, is limited.[35]Two areas of the statement require particular consideration. First, there are lengthy quotes from the previous Guardian’s report. This is not information about Q or the parents at all, but his research into Gender GP. It adds little to what is in the public domain through other cases and what is available online.[36]The second area of the statement which requires consideration is paragraph 23. Here the mother included a direct and lengthy quotation from the father’s statement to this court following the discovery that Q had been taking puberty blockers and hormone treatment for some time. That statement was provided to comply with an order I had made requiring him to provide an explanation for what appears to be a very serious state of affairs and potential breach of court orders and undertakings. That issue has not been adjudicated upon by me or anyone else as yet.[37]In the circumstances I do not think it would be right or fair for that statement, or any part of it, to be disclosed or directly quoted from outside the parameters of these proceedings.[38]I do believe it would be fair for the mother to be able to inform the court through her statement that Q has been receiving hormone treatment for at least 18 months, and that the reason the father gives for allowing this was his concern for Q’s mental health. Nobody objected to that fact being reported by journalists who attended the hearing in February (although they did not in fact report the case) or at any subsequent hearing. I do not see that things should be different because the mother seeks to file a statement in other proceedings.[39]In my judgement, this decision strikes a fair balance between the right of the parties to confidentiality and the mother’s right to engage in other proceedings that are important to her, and matters that may be of public interest.[40]These proceedings now need to be dealt with as speedily as possible. I intend to make decisions as to the disclosure of other documents (medical records from Gender Plus and/or Gender GP) and the name of the pharmacy (or pharmacies) within the next two weeks, and to set the matter down for trial thereafter.