@nauticant
"The first is we must ignore UK law and do what others do."
[...]
This is startling stuff from a QC.
Not really; barristers (and even QCs) do come out with this sort of stuff all the time. Sometimes it is even very well done.
For example, there was a case that was reported a few weeks ago that had very similar issues. It concerned a 15 year old girl who the court held to be Gillick competent and was a Jehovah's Witness, who was refusing a blood transfusion. The Court held that, despite the girl's opposition, the transfusion should take place. This is the full judgment:-
Re X (A Child) (2020) EWHC 3003 (Fam)
It was a distressing case where the girl in question had, apparently, only a matter of hours, rather than days, left before the situation became critical.
The judge who heard the case (Sir James Munby - who is a seriously impressive judge by any standards) could only give a short judgment due to the time constraints. Nevertheless he did mention the very powerful arguments made by counsel for the girl against the blood transfusion which referenced a decision of the Canadian Supreme Court:-
[8] Mr Brady's argument, which is powerful and demands much fuller response than I can give it today, is that to impose this form of treatment on X is to impinge impermissibly upon her autonomy as, I emphasise, a Gillick competent child of almost 16. He submits that the law has moved on, not merely in consequence of the Human Rights Act 1998, but in more general developments, so that the position which had seemingly been reached by the Court of Appeal in the two cases ... in the early 1990s no longer reflects the law as it is. Those are powerful arguments which deserve full analysis and proper consideration. Unhappily, we do not have time for that today in the light of Dr C's medical evidence. I will return to the consequences of this shortly.
[...]
[15] Mr Brady, in an enormously helpful and detailed skeleton argument for which I thank him, has put together arguments suggesting that this view of the law is in need of urgent re-analysis and review, partly in the light of the Human Rights Act 1998, partly in the light of more general recent legal developments, and partly in the light of the very important decision of the Supreme Court of Canada to which he powerfully drew my attention: AC v Manitoba [2009] SCC 30, [2009] 2 SCR 181. These are arguments which require to be dealt with, but it is quite impossible for me, within the timescale that Dr C's evidence sets out, to engage properly with these arguments today. It seems to me that I have no realistic choice, but to take the law as being that which was laid down by the Court of Appeal in the two cases I have mentioned, the best part of 30 years ago, and also in the more recent decision of the Court of Appeal in 2012 in Re G (Education: Religious Upbringing) (2012) EWCA Civ 1233, (2013) 1 FLR 677, where, as it happens, I gave the major judgment.
In para [8] above:-
"so that the position which had seemingly been reached by the Court of Appeal in the two cases ... in the early 1990s"
One of those two cases was Re W which was also relied upon by the High Court in the Keira Bell case and was one of the grounds of appeal used by Tavistock.
It seems to be that Sir James James Munby is suggesting that perhaps this needs to be looked at again and that, perhaps, it needs to be looked at as to whether a court should respect a Gillick competent child refusing life-saving treatment. However, given that he decided that the girl should be given the transfusion despite her refusal it isn't clear on which side of the fence he sits.
Personally, I'm totally on the side of the part of the judgment in the case of Re W where Nolan LJ said that the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes.
So, the law in this area is evolving and is certainly not static.
Just going totally off topic, Sir James Munby was also the judge in the Court of Appeal case concerning the Owens divorce in 2018. This mumsnet AIBU thread from the time:-
Refused Divorce WTF
Sir James has a history of questioning the legal status quo and he made it abundantly clear what he thought of the law in his judgment at the Court of Appeal before it went to the Supreme Court:-
Owens v Owens (2017) EWCA Civ 182
[2] The question for us is whether, within the meaning of CPR 52.11(3)(a), the wife can establish that in coming to this decision the judge was "wrong" – in which case we can interfere. If, for whatever reasons, we find ourselves unable to interfere, the question inevitably arises whether, in 2017, the law is in a remotely satisfactory condition?
He noted that the law continually needs to be updated:-
[41] So, in my judgment, when [the 1969 Act], uses the words "cannot reasonably be expected", that objective test has to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times which Lord Bowen would have had in mind (see Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49, [2014] PTSR 1081, para 2), not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.
So, overall, while there do appear to be powerful arguments in favour of under 16s being given increased autonomy in these sorts of areas, at the moment, the courts in this country are not persuaded by them.
However, it seems that if society does change its position to such an extent that trans rights and self ID etc become accepted generally then the courts are likely to change their position.