Gender dysphoria and medical decision-making on behalf of children: the intersection between federal and state law

Re CD [2024] VSC 456

In Victoria, the scope of a parent's ability to consent to medical treatment on behalf of a child is governed by both Victorian and Commonwealth case law and legislation. In the recent case of Re CD,¹ the Supreme Court of Victoria addressed the critical issues surrounding gender dysphoria in children, parental responsibility and the necessity of consent from an absent parent for medical treatment.

This article examines the legal principles and judicial reasoning applied by the Supreme Court in determining whether one parent can consent to medical treatment for a child diagnosed with gender dysphoria, without the other parent's consent.

Background

In 2011, AB (the mother) had a brief relationship with the father, resulting in the birth of CD (the child). The parents separated shortly after the child's birth, and the mother obtained a final family violence intervention order against the father due to his threatening behaviour, substance abuse and safety concerns around the child. The father ceased contact with the child and mother after discontinuing parenting proceedings he had initiated in the then-Family Court of Australia (now the Federal Circuit and Family Court of Australia) (Family Court) and the mother solely cared for the child.

The child, assigned male at birth, identified as female from around the age of seven and was diagnosed with gender dysphoria at the Royal Children's Hospital (RCH) Gender Service. By that time, the child had socially transitioned.

The child's medical practitioners recommended Stage 1 puberty blockers to alleviate the significant distress and anxiety caused by the incongruence between her assigned gender and gender identity. The child's home and school functioning had significantly deteriorated and she was expressing suicidal ideations. The medical practitioners recommended Stage 1 treatment as it was reversible and could be stopped at any time, which would allow the child to continue to explore her gender identity before making decisions about Stage 2 hormone treatment (such as oestrogen).

The mother consented to the treatment but the father's whereabouts were unknown, which raised the question of whether it was required to obtain his consent. The mother noted that attempts to locate and communicate with the father would create safety concerns for the child.

In July 2024 the RCH initiated proceedings in the Supreme Court in response to concerns it could not administer the treatment without both parents' consent.

Legal issues

The primary legal issues considered by the Court were:

1. Whether the mother could validly consent to Stage 1 treatment on behalf of the child, given the child's lack of Gillick competence (meaning the child was not able to make the decision for herself); and
2. If not, whether the Court could, and should, consent to the treatment under its parens patriae jurisdiction (i.e. the Court's power to intervene to make decisions in a child's best interests).

Relevant legal principles

The Supreme Court examined several key legal principles and precedents of the Family Court, the Supreme Court's own parens patriae jurisdiction, and state legislation in relation to the provision of medical treatment.

In relation to the Family Court authorities on gender dysphoria:

1. In Re Alex² it was held that both Stage 1 (puberty blockers) and Stage 2 (hormone) treatments for gender dysphoria were considered "special medical procedures" requiring court authorisation.
2. In Re Jamie³ Stage 1 treatment was not held to be a special medical procedure and did not require court authorisation absent any other issues (such as a dispute between the parents or with a child's medical practitioner over the child's Gillick competence, the diagnosis or proposed treatment).
3. In Re Kelvin⁴ it was held that court authorisation was not required for Stage 2 treatment with parental consent and medical recommendation.
4. Re Imogen⁵ held that a court application was mandatory if there was a dispute regarding a child's Gillick competence, diagnosis or proposed treatment.

Relevantly for the child in this case, in Re Imogen the Family Court held that in the absence of both parents' consent, a medical practitioner could not administer the treatment without court authorisation. This has been interpreted as requiring positive express consent from both parents rather than an objection or dispute.⁶

In relation to the Family Court's authority regarding decision-making (parental responsibility), the Supreme Court referred to B and B: Family Law Reform Act 1995⁷ in which the Full Court determined that “as a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation.”

In reviewing the Medical Treatment Planning and Decisions Act 2016 (Vic) (MTPD Act), the Supreme Court found that the MTPD Act emphasised the role of the parent, guardian or person with parental responsibility in decision-making on behalf of a child, but that a medical practitioner's failure to consult with all of those with such power did not give rise to liability.⁸

The Supreme Court's analysis and decision

Accepting that the RCH had to obtain consent for any kind of medical treatment and that consent to Stage 1 treatment was within the scope of parental responsibility, the Supreme Court ultimately found that the mother's consent on behalf of the child was sufficient for the following reasons:

• Parental responsibility: The mother had parental responsibility⁹ and had been the primary caregiver since the child's birth. The Family Law Act 1975 (Cth) and the MTPD Act do not mandate the consent of both parents for medical treatment in the absence of a parenting order to the contrary.
• Best interests of the child: While the Supreme Court did not ultimately exercise its parens patriae jurisdiction to make a declaration giving consent to the treatment on behalf of the child (having found the mother could provide that consent given her parental responsibility), if it had to exercise such jurisdiction, it would have given such consent. It found that it would not be in the child's best interests to seek the father's consent, given his absence and lack of involvement in the child's life. The potential harm and distress caused by re-establishing contact with the father outweighed any benefits.
• Legal precedent: The Supreme Court noted that the requirement for both parents' consent as referred to in Re Imogen was not binding on the Supreme Court exercising its parens patriae jurisdiction as it was a decision of a single judge of the Family Court. The decisions in Re Jamie and Re Kelvin were Full Court decisions and therefore binding on the Supreme Court.

The Supreme Court dismissed the RCH's application, finding that it did not need to make a declaration sought by the RCH as the mother had validly consented to the proposed treatment and exercised her parental responsibility for the child. The declaration determined no controversy, did not bind anyone but the RCH, and did not remove any legal barrier to providing the treatment. The Reasons for Judgment resolved the legal uncertainty.

Implications

This case underscores the importance of considering the specific circumstances and, if an application is brought in the Supreme Court of Victoria, the best interests of a child in relation to medical decision-making. Re CD clarifies the legal position regarding parental consent for not only treatment of gender dysphoria, but medical treatment in general, when there is no order in place for parental responsibility and where there is an absent parent.

The case does raise questions in relation to the considerations for legal practitioners and single parents when faced with such an issue, and the evidence that needs to be put before either the Supreme Court or Family Court if there is an absent parent. The case illustrates that absent parents are not given ultimate decision-making power in relation to their children, even in the absence of formal family law parenting orders.

It is therefore critical to obtain specialist legal advice regarding the available options and potential outcomes in relation to children's medical treatment.

If you would like to discuss parental responsibility and consent to medical treatment as it relates to your parenting matter, please contact a member of our family & relationship law team.

¹ [2024] VSC 456.

² (2004) 180 FLR 89.

³ (2013) 278 255.

⁴ (2017) 327 FLR 15.

⁵ (No 6) (2020) 61 Fam LR 344.

⁶ Re G4 [2021] FCWA 104, Re Kelly [2022] FedCFam1CF 380 and Re G9 [2022] FCWA 65.

⁷ (1997) 21 Fam LR 676.

⁸ Sections 51, 55(4), 52, 57 and 61(4) of the MTPD Act.

⁹ Pursuant to section 61C and 61B of the Family Law Act 1975 (Cth) providing that each parent had parental responsibility to make decisions in relation to a child's long-term issues (health, education, religion, etc).

An initial version of this article was drafted with the assistance of generative AI platform, Copilot.