O v P & Anor
[2024] EWHC 1077 (Fam)
Re S (Inherent Jurisdiction: Transgender Surgery Abroad)
1 February 2023
[2023] EWHC 347 (Fam)
High Court
A council tried to stop a teenage boy from having an operation abroad. They couldn't prove it was necessary or harmful, so they gave up and had to pay the family's legal costs because they wasted everyone's time.
Key Facts
- •A local authority applied for leave to prevent a 15-year-old transgender boy, Sam, from undergoing a double mastectomy in Country X.
- •Sam and his parents are citizens of Country X but live in England.
- •The local authority initially based its application on the potential for significant harm to Sam's physical and emotional wellbeing.
- •The application was withdrawn by the local authority on the first day of the final hearing due to insufficient evidence to prove their case.
- •The withdrawal was unopposed by Sam, his parents, and the children's guardian.
- •The court considered the reasonableness of the local authority's actions in pursuing the case for six months before withdrawing.
Legal Principles
Restrictions on the use of the High Court's inherent jurisdiction concerning children are prescribed by the Children Act 1989, s 100.
Children Act 1989, s 100
A local authority can only invoke the inherent jurisdiction if the desired outcome cannot be achieved through other available orders and there is reasonable cause to believe the child is likely to suffer significant harm.
Children Act 1989, s 100(4)
The paramount consideration in children's cases is the child's welfare.
Children Act 1989, s 1(3)
In applications to withdraw cases, if a local authority cannot satisfy the threshold criteria for making a care order, the application to withdraw must succeed.
GC v A County Council and Others [2020] EWCA Civ 848
Costs will only be awarded against a local authority if they acted unreasonably.
Re S (A Child) [2015] UKSC 20; Civil Procedure Rules, r 44.2(5); Re T [2012] UKSC 36
Outcomes
The local authority's application to withdraw was granted.
The local authority could not prove its case on either the legality of the surgery in Country X or the invalidity of consent.
Costs were awarded against the local authority for the final hearing.
The local authority acted unreasonably by failing to adequately consider Sam's welfare and the likelihood of significant harm throughout the proceedings and by focusing on consent and legality rather than the child's welfare.