Modern Families: Giving LGBTQIA+ young people a voice

The family justice system has increasingly recognised that children are not simply the subject of proceedings. Rather, they are individuals with rights, perspectives and interests deserving of meaningful participation. This principle is of particular importance when representing LGBTQIA+ young people, including transgender and gender-diverse children, whose experiences often involve deeply personal questions about identity, autonomy, family relationships and healthcare. While public debate frequently focuses on the substantive legal issues surrounding gender identity and medical treatment, comparatively little attention is paid to an equally important question: how should LGBTQIA+ young people be represented within family court processes?

For family lawyers, judges and children’s professionals, ensuring that these young people are genuinely heard requires careful consideration of competence, participation and the appropriate model of representation.

The different models of representation

In the vast majority of private law disputes, the court will rely on a section 7 report as the vehicle for showcasing a child’s wishes and feelings. In more complex cases, however, the child or young person may become a party to proceedings through the appointment of a Children’s Guardian, who instructs a solicitor on the child’s behalf.

A further option exists where the child instructs a solicitor directly without the appointment of a guardian. Rule 16.6(3) of the Family Procedure Rules permits this where the solicitor considers that the child has sufficient understanding to provide instructions independently. This is fundamentally different from the traditional solicitor-and-guardian (“tandem”) model, and places the solicitor in a conventional client-solicitor relationship with the child.

In Hague Convention child abduction proceedings, either model may be adopted depending upon the circumstances of the individual case – though that too must be subject to a cautious assessment, not least when opinion evidence is being considered.

These differing approaches recognise that children possess varying levels of maturity, understanding and capacity, and that participation must be tailored to the individual rather than dictated by procedural convenience.

Competence is about far more than age

One of the most common misconceptions is that chronological age determines whether a young person is capable of participating directly in litigation. In reality, age is but one consideration.

The leading authority remains CS v SBH & ors (Appeal: FPR 16.5: Sufficiency of child’s understanding) [2019] EWHC 634 (Fam), in which Williams J identified numerous factors relevant to assessing whether a child can instruct a solicitor independently, and the sufficiency of a young person’s understanding. These include the child’s intelligence, emotional maturity, understanding of the issues before the court, appreciation of the litigation process, awareness of the roles performed by judges and lawyers, and their reasons for wishing to participate directly.

Perhaps most importantly, practitioners must be conscious as to whether a child’s views are genuinely their own or simply an echo of one parent’s position. The existence of strong views does not necessarily demonstrate independent decision-making: for example, in the case of CS the extent of the child’s enmeshment with her mother and the emotional harm that she had suffered from that was held to likely diminish her ability to understand the true nature of the issues.

In practice, experienced children’s solicitors often explore seemingly simple issues which can reveal a great deal about the child’s understanding. Can they explain what a judge does? Do they appreciate that their solicitor cannot guarantee a particular outcome? Do they understand that lawyers cannot mislead the court? Are they capable of weighing both the advantages and disadvantages of competing outcomes? Can they put things in chronological order? Can they empathise with their parents? Equally, practitioners become alert to warning signs suggesting rehearsed or coached responses. Hyperbolic language, unusually formal expressions or repeated slogans can indicate that further exploration is required before considering issues of competence.

Listening to what children actually say

Perhaps the most compelling reason for separate representation is that children frequently describe feeling invisible within the process that fundamentally shapes their lives. The refrains practitioners repeatedly hear from young people include:

“Why is this case all about me, yet I don’t know what is going on?”

“I only met the social worker once – how are they deciding what happens?”

And, of course:

“I feel like nobody is listening to me.”

These comments should not be dismissed as frustration alone; rather, they reveal a perceived lack of procedural fairness. The impact that has on the young person – and even their willingness to comply with the final decision – cannot be overlooked.

For LGBTQIA+ young people, this sense of exclusion may be even more acute. Questions concerning gender identity, sexuality social transition, healthcare or family acceptance often involve immensely personal experiences that may not be fully captured through indirect reporting. Separate representation can therefore serve not as a procedural necessity, but rather as an important means of ensuring that the child’s authentic voice reaches the court.

Joinder of course does not mean the child becomes the decision-maker. Family proceedings remain welfare-based, and the court must ultimately determine what outcome best promotes the child’s welfare. Nevertheless, meaningful participation must be considered at every juncture.

When should separate representation be considered?

Practice Direction 16A identifies specific situations where making a child a party may well be appropriate. These include cases involving intractable disputes about living arrangements or contact, or where the views and wishes of the child cannot be adequately met by a report. An older child may be opposing a proposed course of action, for example – or there may also need to be the consideration of international elements, contested medical decisions, complex mental health issues, allegations of abuse, or disputes concerning scientific testing.

These situations are likely to arise with particular frequency in cases involving LGBTQIA+ young people. Disputes concerning sexuality and gender identity frequently intersect with wider family conflict. Parents may fundamentally disagree about social transition, education, pronouns, medical treatment or engagement with specialist services. The young person’s perspective may not align with one or either parent’s position, making independent representation particularly valuable. In a similar vein, international families may face additional complexities where different jurisdictions adopt markedly different legal approaches towards gender recognition or healthcare. In a good number of those cases, joinder may be particularly apposite, and ought to be front of mind for judges and practitioners alike.

Representation in medical decision-making

In cases involving the representation of young people, the phrase “Gillick competent” can often be thrown around incorrectly. It is not a byword for a young person simply making their own decision; rather, the Court of Appeal has clarified that Gillick is strictly limited to the ability of a young person (aged under 16) to give autonomous valid consent to medical treatment (in Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011). This, plainly, can be of particular pertinence to LGBTQIA+ young people. Accepting that Dr Hilary Cass’s “Independent Review of Gender Identity Services for Children and Young People” of April 2024 has of course had a marked effect in this area, arrangements for young people accessing gender-affirming care, both here and abroad, are subject to frequent change.

Whether a young person possesses sufficient understanding to consent to or refuse treatment is ultimately a clinical question for healthcare professionals, applying legal principles developed through case law. Vitally, the legal framework distinguishes between competence to consent to treatment, and competence to instruct solicitors.

So the assessment of consent to treatment should not be confused with whether the same young person is capable of instructing solicitors directly in litigation. The two questions involve different legal tests serving different purposes.

For young people aged 16 or 17, there is a statutory presumption under s8(1) of the Family Law Reform Act 1969 that they may consent to (or refuse) their own medical treatment. Although the court retains its inherent jurisdiction to override those decisions, the courts have repeatedly emphasised that such intervention should be exercised sparingly and generally only where necessary to protect the young person from grave and irreversible physical or psychological harm. (See O v P and Q [2024] EWCA Civ 1577, and reference therein to Re W (A minor) (Medical treatment: Court’s jurisdiction) [1993] Fam 64.)

Understanding this distinction is critical. A legal practitioner assessing whether a young person may instruct them directly is not conducting a Gillick assessment, nor attempting to determine whether the child should receive particular medical treatment. Rather, the solicitor is evaluating whether the child understands the litigation sufficiently to participate as a client. The solicitor may well be seeking to open the door to a further, court-endorsed assessment of the young person’s Gillick competence – and for that assessment to be carried out, for example, by a medical professional.

The particular importance of LGBTQIA+representation

LGBTQIA+ young people often encounter additional challenges beyond mere legal issues. Some can and will experience rejection within the family; others face bullying, mental health difficulties or social isolation. Many are required to explain deeply personal aspects of their life or identity, repeatedly, to professionals who may possess differing levels of understanding or experience. Against that backdrop, effective legal representation performs a function extending well beyond advocacy: it allows continuity throughout proceedings, and permits the young person involved to have the ear of someone impartial, and someone who can advise. The solicitor involved can explain legal processes in accessible language; they can manage expectations, and ensure the young person’s views are accurately communicated. They act as a consistent point of contact throughout what can often become lengthy litigation. That role should not be underestimated.

More to the point: the existence of separate representation frequently transforms proceedings. It provides the court with clearer evidence of the child’s wishes. It can serve to (hopefully) reduce misunderstanding between professionals, and helps ensure that important nuances are not lost within broader parental disputes.

Hearing children without surrendering judicial responsibility

There remains an understandable concern that directly representing children risks placing excessive responsibility upon them. For one part, experienced practitioners know how to function as a “buffer” between the child and warring parents. Joinder of a child should not mean that they are simply catapulted, unprepared, into the back row of a court room – or worse, into the witness box.

Moreover, children’s wishes and feelings constitute an important and necessary welfare consideration, but they are not determinative. The court must evaluate those wishes alongside every other relevant welfare factor. The challenge for judges and practitioners is therefore not simply whether children should be heard, but how they should be heard.

Meaningful participation does not require children to carry the burden of decision-making. Rather, it ensures that decisions affecting them are made with an informed and accurate understanding of their experiences, perspectives and aspirations.

Representing LGBTQIA+ young people requires sensitivity, legal expertise and a genuine commitment to child-centred practice. Questions of competence should never be reduced to age alone; nor should practitioners assume that indirect reporting will always capture the complexity of a young person’s lived experience.

Needless to say, separate representation will not be appropriate in every case. However, where the child’s interests differ from those of the adults, where medical or identity issues are central to the dispute, or where the young person seeks an active role in proceedings, independent representation may well significantly improve both procedural fairness and the quality of judicial decision-making.

Ultimately, the family justice system exists to determine what best promotes a child’s welfare. Achieving that objective requires more than simply speaking passively about children. It requires ensuring, where appropriate, that they are given the opportunity to speak for themselves – and that someone is there to ensure their voice is properly heard.

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