Gender variance and care orders

A mother’s determination that a child was “gender variant” did him significant harm, the Family Court has ruled. Rosalind English reports.

The proceedings in J (A Minor), Re [2016] EWHC 2430 (Fam) 21 October 2016 concerned a care order sought by the local authority in respect of a seven year old boy (J). The judge found that his mother, who had separated from his father within 12 months of J’s birth, had caused her son significant emotional harm by making him live as a girl. The care order sought would allow J to continue to live with his father, in whose care he had flourished.

After the separation J had stayed with his mother. Contact arrangements broke down in 2013, causing the father to apply for a child arrangements order. Contact was consistently opposed by the mother. In 2013 and 2014, various agencies raised concerns with the local authority about the mother’s mental health and the fact that J was presenting as a girl. The mother had claimed that J was “gender variant” and should be allowed to go to school dressed as a girl. Social services were concerned that he was made to wear a pink headband and nail polish. And indeed at a hearing in November 2015, the mother told the court that J was living life entirely as a girl: he dressed like a girl and had been registered with a GP as a girl. She was reported to be considering sending the child to a gender reassignment clinic. As the judge said, when all this was properly analysed it was clear that “flares of concern were being sent from a whole raft of multi disciplinary agencies.

"Each was signalling real anxiety in respect of this child’s welfare. Whilst it is, I suppose, conceivable that these referrals were considered individually, it is impossible to draw any inference other than that they were never evaluated collectively."

The local authority, concluded Hayden J, had “consistently failed” to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. It was “striking” that the local authority had moved into wholesale acceptance that J should be regarded as a girl.

"Once again, I make no apology for repeating the fact that J was still only 4 years of age."

A year later, at a final hearing concerning J’s care, the judge was struck by the way the mother spoke of her son, only “in the somewhat opaque and convoluted argot of social work and psychology.”

"She offered an impressive, intense and highly articulate evaluation of the problems faced by children with gender dysphoria but she conveyed no sense of J’s personality, temperament or enthusiasms, notwithstanding frequently being encouraged to do so. Repeatedly she struck me as a professional witness giving evidence about somebody else’s child."

Subsequent to that hearing, J was removed from his mother’s care and went to live with his father and his partner. He settled down well with his father, and flourished away from the home education provided by his mother. His school reported that there had been no gender issues; indeed he had started showing interest in boys’ games and toys. The evidence now was that he was happy, settled and increasingly secure where he was.

The Court held that the criteria for the making of a care order were met.

Reasoning behind the Court’s decision

The mother had caused J significant emotional harm by her failure to acknowledge J’s right and need to have a relationship with his father. Above all, Hayden J considered that the mother had caused “significant emotional harm” to J in her active determination that he should be a girl:

"I find that she has overborne his will and deprived him of his fundamental right to exercise his autonomy in its most basic way. Whether J chooses to present as a girl or not, ought to be his choice. This is not a case about gender dysphoria, rather it is about a mother who has developed a belief structure which she has imposed upon her child."

According to evidence given by a psychologist, the mother had become “enmeshed” with J in that she was unable to distinguish his feelings from her own, rendering her ill-equipped to meet his emotional needs. J should remain with his father. He should be given the maximum support available, buttressed by imposing on the local authority the statutory duties flowing from a care order. The mother should have contact with J, although it should be monitored very carefully.

The judge’s experience in the Family Division left him with little doubt that young children may identify strongly with their opposite gender.

"Such children can experience rejection and abuse arising from ignorance both on a personal and institutional level. … It is important that such children are listened to and their views afforded respect but, to my mind, they are ill served by premature labelling. What they require, as F has so capably demonstrated, is the opportunity to develop their identity in which ever way it evolves. J was not only deprived of that space and opportunity by his mother, he was pressed into a gender identification that had far more to do with his mother’s needs and little, if anything, to do with his own."

Transgender equality had received a great deal of attention recently. In this case, the profile and sensitivity of the matters raised by the mother blinded a number of professionals from applying their training, skills and common sense. They failed properly to investigate the mother’s assertions, in part because they did not wish to appear to be challenging an emerging orthodoxy in such a high-profile issue.

Rosalind English is a consultant at One Crown Office Row. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the set's UK Human Rights Blog.