Case No: B4/2007/1180
B4/2007/1882
Neutral Citation Number: [2008] EWCA Civ 85
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE MCFARLANE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 23rd January 2008

Before:

LORD JUSTICE WALL
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IN THE MATTER OF T (A CHILD)

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THE APPELLANT APPEARED IN PERSON

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Wall:

1.	This is a very sensitive and difficult case and, even though there is no representative of the press in court, my view is that this is a case that should be dealt with under initials and anonymised.  

2.	At the centre of it is a little boy called S who was born in 2000 and who will be eight later this year.  The biological father of S was Mr A, but Mr A had undergone gender reassignment and is now a woman, and it is her application for permission to appeal against two orders made by McFarlane J, a judge of the High Court; the first being made on 17 May of last year and the second on 12 July, amended on 24 July.  

3.	Cases of what is known to lawyers as “gender reassignment” are very difficult for everybody, not least, of course, for the children concerned; but the conventional wisdom is that a child, one of whose parents has undergone gender reassignment, needs to be told at as early a stage as is consistent with his or her welfare that this is what has occurred, so that the child can adjust to the change and, it is hoped, maintain a relationship with the parent who has undergone the change..

4.	In this case I need not go into the history.  For present purposes, what happened was that, on 17 May, McFarlane J had to decide whether or not the time had come for S to be given information about his biological history.  He had before him at that stage (the case having been transferred from the County Court to the High Court) S’s mother and Miss T, the applicant, who appears before me today. Both were both in person;  and representing the child was a guardian instructed by, or deriving his instructions from, the National Youth Advocacy Service (NYAS)..  

5.	The judge’s decision, which he gave in a careful and characteristically thoughtful judgment, was that the time had come for S to be told about his origins. The applicant did not agree. The judge listened carefully to her objections to this course.  He categorised them under three headings: firstly, it was premature; secondly, she disagreed with the process that was being proposed by the guardian; and thirdly, she emphasised the risks and dangers that may fall out from the work being undertaken prematurely, as she saw it.  

6.	The judge, as I say, considered those three heads of objection in his judgment and overruled them, because he came to the view -  following an earlier dictum of Coleridge J in another gender reassignment case -  (albeit in a decision which, I think, in the result was not upheld in this court)  that really the time had come;  that S needed to be told;  that he was old enough to understand the position if explained to him in appropriate terms; and, finally,  that the appropriate person to do the work was Mr J, the NYAS caseworker.

7.	So the judge made an order, the terms of which are set out -- that information as to S’s biological and familial relationships was to be communicated to him by his mother and by Mr J. The information was listed under a number of headings. These  included telling him  who his biological father was; the fact that his father had undergone the gender reassignment process whereby she had become Miss JT; that JT ( referred to as J)  was one of his parents and was female; that she was not his mother but that L was, and a point which the applicant  particularly objects to, that JT called herself “Ma” (inaudible);  and that she had changed her surname name to T. The identity of his paternal grandparents was also to be clarified for him.  The judge listed the matter to come back on 12 July 2007 for further directions.

8.	The difficulty that the applicant  has in seeking permission to appeal against that order of 17 May 2007  is that it has been put into effect.  On 12 July 2007there was a further hearing.  The applicant  applied to the judge for a stay or a suspension of the life story work being undertaken.  The judge refused; and  directed that the final hearing of all the issues relating to S which include, of course, Miss JT’s contact with him were to be heard in January of this year.  The date fixed, according to the guardian’s report, is 30 January; with a time estimate of three days, and the guardian was directed to file a report and serve it by 4pm on 14 September.  

9.	The guardian has filed a report which I have seen.  The applicant kindly produced it this morning.  It is dated 16 January.  The work has been much postponed, and of course the timetable means that there will be no proper opportunity for the applicant  or, indeed, for S’s biological mother to put in further evidence prior to the hearing on 30 January. The applicant tells me indeed that she has applied to the judge for that hearing to be adjourned.

10.	The applicant feels very strongly that her fears about what would happen have been only too realistically fulfilled; that the situation has gone from bad to worse; and that her relationship with her son has effectively come to an end.  His feelings towards her, she fears, are more negative than they were before. She fears that the memories S had of her, which were positive,  may well have been destroyed; and she remains firmly convinced that the judge made the wrong order and that Mr J is not the right person to undertake the work.  

11.	But the difficulty, of course, is, as I have sought to explain to the applicant this morning, is that the judge’s order has been put into effect, and he himself refused a stay on 12 July.  Therefore the difficulty which faces this court, given that there is a hearing on 30 January -- or there may be another hearing later if that is adjourned -- the difficulty remains that this court is a reviewing court; it looks at what the judge did, and if the judge overstepped the mark, or misapplied the law, or exercised his discretion in a wholly inappropriate way, this court can intervene to correct it.  But this court simply cannot put the clock back, anymore than any other human being can put the clock back.  And in my view, there is simply no purpose to be served in an appeal against either of the judge’s orders, however strongly the applicant  may feel about them. However much she may feel that they were wrong, the simple fact of the matter is that they have been put into effect.  

12.	The critical issue in the case is not one for this court.  The critical issue in the case is whether or not and in what circumstances the applicant  should be able to resume her relationship with her son.  That is the crucial issue.  As I say, S is rising eight, he will be eight at the end of this year, and of course he has his entire life before him.  I agree with the applicant  when she submits that it is very important that we should now, if possible, get things right so that the relationship can be restored at an early stage, and S can form -- or re-form, I should say -- a proper and sensible relationship with the applicant..

13.	These, it seems to me, are all matters for the judge, not for this court.  This court simply has to review what the judge did; and I have to tell the applicant -- it may be no  satisfaction to her -- that in matters of this sort a judge has a very wide judicial discretion with which this court is very reluctant to interfere, unless it can be shown that what the judge did was  plainly wrong.

14.	In the instant case, the judge did what, if I may say so, is very conventional.  He decided that the time had come for S to be told.  That course of action was, as I understand it, supported by the guardian and by S’s mother.  It was opposed by the applicant and the judge had to choose between them.  He did so in a very careful, thoughtful judgment.  He reached a conclusion which has been implemented, so I do not, myself, looking at the papers, listening very carefully to what the applicant said to me this morning and this afternoon, I do not see any gross error in the exercise of the judge’s discretion.  

15.	I know the applicant does not agree with what the judge did , but that is not the same thing as saying that what he did  is plainly wrong.  It was, as I say, a perfectly conventional thing to do.  So, in addition to the matter being academic -- in the sense that the horse has left the stable and there is no point bolting the gate now -- in my view the judge’s exercise of discretion was one which was perfectly open to him, and therefore even if I were to take the  view that there might have been a prospect of interfering with the judge’s order in some way , I have to say that I  take the view that the judge was entitled to do what he has in fact done.

16.	Equally, he was entitled to refuse the application for a stay in July. It may be little consolation to the applicant but if she had wanted to intervene through this court, it would have been essential at that point to have come straight to this court and to have said, “the judge has refused a stay, would you please give one”.  

17.	The guardian’s report, which is dated very recently -  16 January -  demonstrates that telling S had not been altogether straightforward.  The applicant resists the temptation to say “I told you so”, but she gleans from the guardian’s report all the difficulties which she foresaw and she sees the diminution in her relationship with S.  These, in my view, are matters for the judge to consider, if not on 30 January, at least on a further occasion.  

18.	There is a hint in the papers that the applicant may give up if she does not feel matters are progressing appropriately.  I urge her not to do so.  It is very important, in my view, that children know of their heritage and come to terms with any change in that heritage that there has been.  It is important in my view and I am sure it is important in the mind of the judge that, if possible, S should resume his relationship with the applicant and I am sure that will be part of the judge’s overall plan.  It is not the judge’s plan, as it see it,  to bring the relationship to an end.

19.	I think it is very difficult sometimes for people in the applicant’s position to realise the effect of a change of gender on others.  For such people, it is a moment of happiness -- they have now, at long last, achieved what they have always actually wanted and they feel fulfilled in their new gender.  That is not the same for others and it is more difficult, I think, for others to come to terms.  I do not read anything in the documentation which demonstrates overt hostility to the applicant or her change of gender and I am confident that, if the applicant persists in a moderate and thoughtful way, the judge will respond and in due course she will be able to resume her relationship with S.  

20.	I am very sorry that the applicant thinks the judge was wrong; I am very sorry that she thinks the way Mr J has gone about the matter itself was wrong, and I am very sorry she feels that there has been a diminution in her relationship with S as a consequence of the judge’s actions; but in my view the remedy now is to move forward into the hearing at the end of this month and, if that hearing is adjourned, to what ever hearing there is afterwards.  If the applicant remains convinced that the guardian is not doing an appropriate job, she can always apply to the judge for him to be replaced, although in my experience of NYAS I have to say was, for the time when I sat at first instance,  that its representatives were conscientious in seeking to promote the interests of the children whom they were asked to represent.

21.	But for all the reasons I have given, I have to say that this is not a case in which this court can intervene.  Strong feelings are properly expressed in both of the appellant’s notices which the applicant has placed before the court, and I fully understand where she is coming from and what she feels.  But at the end of the day, it is going to be a matter for the judge on the ground on the evidence to resolve.  If she remains dissatisfied with whatever the judge does in the future, she has, of course, the right to apply for permission to this court to appeal against it; but, in the instant case, as the two orders of the judge have been put into effect, I see no purpose in putting this matter over to the full court.  Were I to do so, it will simply cause delay.  The inevitable result, in my view, would be that the matter would be remitted back to McFarlane J to continue the hearing, and therefore nothing would be achieved, except quite possibly further ill-feeling and delay.

22.	In all those circumstances the applications will be refused; but I urge the applicant to continue to appear before McFarlane J, to continue to put her case, and I hope very much that she will, sooner rather than later, be able to resume her relationship with her son.  That said, these applications must, I fear, be refused.  

Order:  Applications refused