Trans and gender diverse children: the law and the family court

A child’s parents (or whoever has parental responsibility for them) are expected to make decisions to safeguard their best interests, including consenting to medical treatment and deciding other issues about their upbringing and welfare. Children who identify as transgender or gender diverse rely on those who have parental responsibility for them to support them with being able to live in their true identity and, where necessary, to implement decisions about social transitioning (including changes of name and arrangements at school) as well as any medical treatment which is sought.

Difficulties can arise if parents do not agree about what is the right way forward for their child, if the child is being cared for by a local authority, or if the parents don’t support the child’s wish to transition. Ultimately, the family court has the ability to make a decision where necessary, and its paramount consideration will be the child’s welfare. 

This can be interpreted very broadly and so the court will also consider the ‘welfare checklist’ as found in Section 1 of the Children Act 1989. This includes: 

  • The ascertainable wishes and feelings of the child (in light of their age and understanding of the situation);
  • Their physical, emotional and educational needs;
  • The likely effect on them of any change in their circumstances;
  • Their age, sex, background and any characteristics that the court considers relevant;
  • Any harm which they have suffered, or as risk of suffering;
  • How capable each of their parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs; and
  • The range of powers available to the court under the Children Act.

The family court will generally be very sympathetic to allowing a child to live in accordance with their gender identity, whatever that means, although there is limited published case law demonstrating this.

One case which seems to go against this principle, but which was in fact very unusual on the facts, is the case of Re J (2016), the mother of a four year old cisgender boy said that he wanted to live as a girl and therefore opposed the father (who did not support this) having any contact with his child. Although the mother initially persuaded the court that her son was identifying as transgender and this was not supported by her ex partner, ultimately the judge ruled (having heard evidence that the mother had fabricated evidence and lied to professionals, and following the involvement of a CAFCASS guardian) that the child should live with his father where he had the choice to identify as either a girl or a boy. The child ultimately chose to identify as male in line with the gender he was assigned at birth. His contact with his mother was suspended until the boy had settled although Mr Justice Hayden stressed the importance of retaining contact because she had been ‘the centre of his world for so long’. A Care Order was made to ensure that the boy’s father had the maximum support. CAFCASS (the Child and Family Court Advisory and Support Service) played an important part in Re J (2016) (see CAFCASS Service Manager, Nigel Nash’s blog here for further information).

Mermaids is a national charity which supports children, young people and their families who are gender diverse, and who may be able to help you with support and further information.

If you would like legal advice on your personal situation, please contact us on hello@ngalaw.co.uk or call on 020 3701 5915.