Re S (Inherent Jurisdiction: Transgender Surgery Abroad) [2023] EWHC 347

Six members of chambers acted in this case before the President in which Guidance was given on the use of the inherent jurisdiction by local authorities. The case involved an application by a local authority to prevent a young trans person from travelling out of the UK to obtain ‘top surgery’ in another jurisdiction.  Deirdre Fottrell KC acted for the young person, Sharon Segal and Niamh Daly for the Father, Richard Jones and Melissa Elsworth for the Mother. Andrew Norton KC acted for the Local Authority in the hearing before the President, although had not had previous case conduct.

The local authority withdrew its application at the final hearing, with the President approving that application, although the Court awarded costs against the local authority determining that it had acted unreasonably in pursuing the claim up to that point. Guidance was provided as to how and when a local authority should seek to utilise the inherent jurisdiction. The President noted that (a) that there should be ongoing regard as to whether there is a ‘likelihood of significant harm’(s100(4) CA 1989) throughout the substantive proceedings; (b) that the inherent jurisdiction should only be exercised in favour of imposing a restriction on action that would otherwise be permitted where a likelihood of significant harm to the child is proved;(c) the child’s welfare remains the paramount consideration under the inherent jurisdiction, just as it is under the 1989 Act itself; and (d) reference to the welfare checklist is likely to be helpful albeit not required by statute. 

The President made a costs order against the local authority in respect of some of the costs of the respondent parties. As the parents’ legal representatives acted Pro Bono costs were to be paid to the Access to Justice Foundation

Full Judgment

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