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This poignant case tells a sad story, but an instructive one in terms of human rights and the ability of courts to interpret statutes in accordance with these rights under Section 3 of the Human Rights Act 1998.
The judge’s role in these difficult private cases is subject to the “stern test” laid down by Sir James Munby in Samantha Jeffries v BMI Healthcare Limited and others[2016] EWHC 2493 (Fam) . Respect for a statute’s obvious does not entail
that the judge must approach a case such as this bereft of humanity, empathy, compassion and sympathy. What it does mean is that the judge cannot allow his judgment to be swayed, or his decision to be distorted, by those very human emotions.
Background facts and law
The statute in question in that case and this was the Human Fertilisation and Embryology Act 1990, as amended by secondary legislation and the Human Fertilisation and Embryology Act 2008. More on that later. Here, the applicant sought a declaration that it was lawful for him to use an embryo created using his sperm and the eggs of his late wife in treatment with a surrogate. The embryo was created in 2018 when the applicant and his wife (C) were undergoing fertility treatment to fulfil their wish to have children of their own. The embryo is currently stored at the Centre for Reproductive and Genetic Health.
The applicant and his wife had undergone several unsuccessful cycles of IVF, the latter being private. They had remortgaged their house to pay for the treatment. A positive pregnancy with twin girls was confirmed in November 2018. C developed complications in her pregnancy at 18 weeks, which resulted in a uterine rupture, and she died on 25 February 2019. There was one remaining embryo which the applicant wished to use with a surrogate, to fulfil their joint wish for this to take place in such circumstances. He accepted there was no written consent by C for that to take place but said that they had not been given sufficient information or opportunity to give that written consent. It was that remaining embryo that was the subject of this application.
A case about medical treatment for children experiencing gender dysphoria is bound to evoke strong feelings. So, in early October, when the parties in R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others arrived for the hearing at the Royal Courts of Justice, they found a buzz of press photographers and a throng of campaigners with placards.
Now the Divisional Court has delivered its judgment in this controversial and difficult case. On 1 December 2020, it substantially upheld the Claimants’ challenge to the practice of prescribing puberty-blocking drugs to children, some as young as 10, with gender dysphoria.
The first Claimant, Quincy Bell, was born female. At about 15 she was prescribed puberty blocking drugs (PBs) to halt the development of female sexual characteristics. Subsequently she transitioned to a male using “cross-sex hormones” and then underwent a double mastectomy. She told the court her doubts began before the surgery and she now wished to identify as a woman, reverting to the sex on her original birth certificate. “I made a brash decision as a teenager” she said, “… trying to find confidence and happiness except now the rest of my life will be negatively affected…transition was a very temporary, superficial fix for a very complex identity issue.”
The second Claimant was the mother of 15 year old with autismexperiencing gender dysphoria whom she feared would be prescribed puberty-blockers.
The Claimants contended that prescribing these drugs to under 18s was unlawful because they lacked competence to give valid consent to the treatment, and were given misleading information.
This was an application by a father for a declaration that it should be lawful for him to use an embryo created using his sperm and his late wife’s eggs in treatment with a surrogate. The Human Fertilisation and Embryology Authority opposed the application, on the basis that there was insufficient consent from his wife (AB).
The embryo was created in 2017 during the course of treatment being undertaken by EF and AB at a clinic licensed by the HFEA and remains stored by them. EF’s wife died unexpectedly along with the couple’s youngest daughter. It was against that background that this application was made.
EF argued that the HFEA’s decision preventing him from using the remaining embryo amounted to an interference (i) with his Article 8 rights, alone and as interpreted in light of Article 9, and (ii) with those rights when considered in the context of Article 14, which prohibits discrimination in the treatment of men and women. Such interference with those rights, in the circumstances of this case, was disproportionate. Therefore, argued the applicant, the Court was required by s 3 HRA 1998 to read and give effect to primary and subordinate legislation in a way which is compatible with Convention Rights.
Both EF and his late wife were adherents of what the court called the “J religion”, whose central doctrine is the sanctity of life and the divine purpose of all life forms. They believed that the divine soul enters the embryo at point of conception.
They both came from large families and wished to replicate that pattern for themselves. AB suffered a miscarriage in 2008. They went on to have a daughter (X) and they wanted a sibling for her. After IVF treatment AB gave birth to Y. Y subsequently died of neonatal complications. AB and EF wished to use their remaining embryo retrieved in that IVF treatment to have another child.
(Jeremy Hyam KC and Alasdair Henderson of 1 Crown Office Row represented the mother in this case)
This was an appeal from a decision in the Divisional Court by Judd J in April 2024. The case raises a question at the core of the transgender debate involving young people: consent.
The young person at the centre of this litigation is now 16 years old. He was born female and started to identify as male in 2020 at the age of about 12.
His parents were estranged. In these circumstances his mother appealed against the refusal of her request for an adjournment of proceedings in which she sought a prohibited steps order and a best interests declaration in relation to her child, pending an assessment being undertaken by a private gender dysphoria clinic (Gender Plus), the first private gender dysphoria hormone clinic in the UK.
It was accepted that, now the young person was by now 16, no Gillick competence question arose (see Sir James Munby at [55] in An NHS Trust v. X [2021] EWHC 65 (Fam), [2021] 4 WLR 11, and MacDonald J at [48]-[49] in GK and LK v. EE [2023] EWCOP 49). It was also accepted that the young person was “impressive, hardworking and intelligent” and had no mental health problems.
Puberty Blockers and Cross-Sex Hormones: Policy Background
As Vos MR noted, a number of events coalesced to make this case a particularly sensitive one at the time of this appeal.
(i) the Cass Interim Review in 2022 led to the closure of the Tavistock clinic that had been in issue in Bell v. Tavistock;
(ii) on 12 March 2024, NHS England published a clinical policy concluding that there was not enough evidence to support the safety or clinical effectiveness of puberty blockers to make the treatment routinely available (outside a research protocol);
(iii) as the first instance judge recorded at [58], NHS Scotland had announced before the hearing that persons under 18 would not be prescribed cross-sex hormones;
(iv) on 21 March 2023, NHS England published a clinical commissioning policy laying down stringent eligibility and readiness requirements to be met before cross-sex hormones could be administered to those over 16;
(v) on 9 April 2024, NHS England wrote to all NHS gender dysphoria clinics asking them to defer offering first appointments to those under 18 “as an immediate response to Dr Cass’s advice that ‘extreme caution’ should be exercised before making a recommendation for [cross-sex hormones] in [children]”;
(vi) on 10 April 2024, the Cass Review was published*; and
(vii) on 11 December 2024 (the day before the hearing before the Court of Appeal), the government announced that the temporary embargo on the use of puberty blockers would be made indefinite (subject to a review in 2027).
* For the purposes of this case, the mother highlighted that the Cass Review had called into question the quality of the evidence on which hormone treatments for adolescents are based. Dr Cass says at page 13, for example, that “[t]he reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress”. Moreover, Dr Cass highlights new evidence about brain maturation continuing into the mid-20s, whilst it was originally thought to finish in adolescence. Dr Cass recommended that puberty blockers should only be available within a research protocol, and that recommendation has now been implemented.
The judge at first instance had said first that, whilst the findings of the Cass Review might turn out to be very significant, she did not think they justified her departure from Bell v. Tavistock and from Lieven J’s decision in AB v. CD and Tavistock [2021] EWHC 741 (Fam) (AB v. CD), which the Court of Appeal approved in Bell v. Tavistock.
Arguments before the Court
The father sought to terminate the proceedings begun by the mother on the ground that they were causing the young person significant distress. The mother contended that the proceedings should be adjourned because the legal and regulatory landscape for gender dysphoria treatment was changing rapidly; the Cass review had only been published a week before the hearing before the judge; and Gender Plus was a private provider whose practices and procedures were diverging from the NHS approach. In these circumstances, it behoved the court to keep an eye on a case of this kind in a time of flux. The mother also argued, though not strenuously, that cases concerning treatment for gender dysphoria should be regarded as being in in a special category requiring judicial oversight wherever there was less than complete unanimity. If necessary, the mother submitted that the Court of Appeal should depart from its recent decision in R (Bell) v. Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All ER 416.
The judge below had concluded that, while the Cass review might be significant, it did not justify a departure from the decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, [2022] 1 All E.R. 416, [2021] 9 WLUK 157, in which it was held that treatment with puberty blockers should not be distinguished from the consideration of contraception in Gillick, and that questions of Gillick competence were for doctors, not the courts. Judd J held there was no realistic basis upon which to override the young person’s consent to treatment by a regulated provider and that there was no legitimate purpose in adjourning the case.
A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) – UKSC 2020/0133 Court of Appeal (Civil Division)
The Supreme Court has upheld the Court of Appeal’s decision that to have capacity to engage in sexual relations, a person needs to be able to understand that their sexual partner must have the capacity to consent to the sexual activity and must, in fact, consent before and during the sexual activity.
The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. He has a complex diagnosis of autistic spectrum disorder (Asperger’s syndrome) combined with impaired cognition as a result of suffering significant brain damage from epilepsy.
JB has expressed a strong desire to have a girlfriend and engage in sexual relations. Part of JB’s diagnosis of Asperger’s syndrome caused him to be
…obsessionally fixated on a particular woman, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable
His previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. JB had argued in the Court of that he had capacity to consent to sexual relations in circumstances where the expert evidence had found that JB understood the mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease but that his ‘understanding of consent’ was lacking.
The outcome for JB, if he was found to lack capacity to make decisions in respect of sexual relations, would be that he would be deprived of all sexual relations and that no other person could consent on his behalf (S27(1)(b) Mental Capacity Act 2005(MCA).
JB was successful at first instance in the Court of Protection, but the Court of Appeal reversed the decision and found in favour of the Local Authority. On further appeal to the Supreme Court the court agreed with the Court of Appeal the result being that JB did, in fact, lack capacity.
The appeal by Tavistock and Portman NHS Trust was allowed. Image: The Guardian
In Bell and A v Tavistock and Portman NHS Trust and others[2021] EWCA Civ 1363 the Court of Appeal advised judges to avoid formulating policy in an area of social and moral complexity.
Ever since the Divisional Court restricted the medical treatment of children experiencing gender dysphoria at the end of last year (see R (on the application of Bell and A) v Tavistock and Portman NHS Trust and others), discussed on this blog here), the decision has provoked heated debate. Some lamented the distress of young sufferers deprived of treatment. Others applauded limits they said would prevent irreparable harm. On 17 September 2021 the Court of Appeal reversed the decision, but the dispute will continue to rage both in and outside the Courts.
The first Claimant, Keira Bell, is a former patient of the Tavistock who was prescribed puberty blockers at 16 to delay the onset of female sexual characteristics. She transitioned to a male using cross-sex hormones, had a double mastectomy, and then changed her mind, regretting the “brash decision” she said would negatively affect the rest of her life. Her case – accepted by the Divisional Court — was that the “innovative” and “experimental” nature of the treatment, specifically the use of puberty blockers, made it unlikely a child could validly consent to it.
D Borough Council v AB [2011] EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
In RTM v Bonne Terre Ltd [2025] EWHC 111 (KB), the High Court considered claims brought in data protection and the tort of misuse of private information. The Claimant described himself as a “recovering online gambling addict” [1]. He sought damages for harm, distress and financial loss, and a declaration that his rights under data protection legislation had been infringed, from the Defendant, who operate Sky Betting and Gaming (SBG). The relevant period of the Claimant’s gambling for the claim against SBG (restricted by limitation periods) was 2017 until the end of 2018 or the start of 2019 [15].
The Claimant’s case was that SBG harvested his data using cookies without his consent. SBG the processed his personal data for marketing purposes without lawful basis, and targeted him through direct marketing emails (also without his consent) sent on average twice a day [68]. Consequently, he alleged he suffered substantial losses.
Despite the claim having started in an almost inquisitorial fashion, with the Claimant undertaking a broad investigation into gambling laws when recovering from his addiction, the narrow issue at trial was “what, if anything, [the Claimant] consented to in the marketing part of the operation” [77].
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
J v Bath and North East Somerset Council & M [2025] EWCA Civ 478 concerns an appeal of a decision by Mrs Justice Lieven. Lieven J had held that there was no need for the High Court to make an order authorising the deprivation of J’s liberty in circumstances where both J’s parents and the local authority consented to the deprivation of liberty.
J is a 14-year-old boy with a number of diagnoses, including autism, ADHD, and Pica. J lives in a specialist children’s home. J is subject to a final care order under Section 31 of the Children Act 1989 (“CA 1989”). The Court of Appeal spelled out that the “major consequence of any care order is that it gives parental responsibility to the local authority, which is shared with the child’s parent(s), but with the local authority having control over the manner in which parental responsibility is exercised [CA 1989, s 33(3)]”.
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015
The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.
In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent.[1] However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.[2]
More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation.[3] A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’.[4] In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.
CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment
The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2”. He had been released on licence and he was apprehensive about his safety upon his return to the community.
He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down (XY v Facebook Ireland Ltd[2012] NIQB 96). Continue reading →
A Local Authority v H [2012] EWHC 49 (COP) – Read judgment
The Court of Protection has ruled that an autistic woman with an IQ of 64 does not have the mental capacity to engage in sexual relations, on the basis that she does not understand the implications and cannot effectively deploy the information she has understood into her decisions.
H is a 29 year old woman with mild learning difficulties and atypical autism. Although there is potential for improvement in her conditions, they are life-long.
She had a history of a very early and very deep degree of sexualisation. H engaged in sexual behaviour with others which she did not always consent to, one man having been convicted in 2003 of her attempted rape, and when she did consent the behaviour was still unconventional and exploitative. She had been on the child protection register and had extensive entries in her adult records with the local authority. In short, she is highly sexualised and vulnerable.
ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children. Continue reading →
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Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – 
A Local Authority v H [2012] EWHC 49 (COP) – 
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