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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (a child) [2003] EWCA Civ 1148 (30 July 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1148.html Cite as: [2003] 3 FCR 156, [2003] 2 FLR 1095, [2003] 2 FCR 156, [2003] EWCA Civ 1148, 73 BMLR 152, (2003) 73 BMLR 152, [2003] Fam Law 731 |
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IN THE COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE – FAMILY DIVISION
(MR
JUSTICE SUMNER)
Strand, London WC2A 2LL | ||
B e f o r e :
LORD JUSTICE SEDLEY
and
SIR ANTHONY
EVANS
____________________
B (Child) |
____________________
JONATHAN COHEN QC
and KATE BRANIGAN (instructed by Messrs Larcomes LLP of Portsmouth PO2 9DN
[1431] and Messrs Lester Aldridge of Bournemouth BH8 8EX [1432]) appeared for
the respondent fathers.
Hearing date: Thursday 24 July 2003
____________________
Crown Copyright ©
THORPE LJ:
"This case raises novel issues of public importance."
In my judgment that is a considerable overstatement. The burden of this case fell upon Sumner J. On the issue of immunisation he heard a great deal of expert evidence. Dr Conway, a distinguished consultant paediatrician with a special interest in immunology, was instructed on behalf of the fathers. The judge described him as a clear, careful and impressive witness. He also heard from a no less impressive witness, Professor Kroll, professor of paediatrics and infectious diseases at Imperial College. Professor Kroll was instructed by CAFCASS Legal. Finally he heard from Dr Donegan, a general practitioner and homeopath instructed on behalf of the mothers. By the time the experts came to give evidence Dr Conway and Professor Kroll were in agreement. The expert dispute lay between them and Dr Donegan. The judge was highly critical of Dr Donegan's expertise. He concluded that she had allowed her deeply held feelings on the subject of immunisation to overrule the duty owed to the court to give objective evidence. In consequence he concluded:
"I lack a reliable opinion which differs from Dr Conway and Professor Kroll."
"I consider that she will be able to cope with my decision difficult as it will be. I find support in Dr Veasey's report. She will be upset. But my decision will not I find cause an adverse reaction as Dr Veasey says. Nor I am satisfied will it cause an impact into her relationship with C to an extent that runs any significant risks for C."
"But I do not consider that if I were to make the declaration sought that it would affect her care of F. She could cope with that and the aftermath as well as she has done with the protracted litigation. She said she could accept my decision."
" 'A specific issue order' means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
"Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child."
"There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under section 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child's surname is another."
"I understood the mother's counsel to advance two reasons why discretion could only be properly exercised to the effect contended for. The first was that the court should never override the decision of a devoted and responsible parent such as this mother was found to be. I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can"
"(Counsel's) suggestion that the decision of this mother came within that band of reasonable decisions within which a court would not interfere would import into this jurisdiction the test applied in adoption to the refusal of a parent to consent to adoption. It is wholly inapposite to the welfare test and is incompatible with the decision in Re Z."
"1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(f) To develop preventive health care, …"
"This decision should not be seen as a general approval of immunisation for children. It does not mean that at another hearing a different decision might not be reached on the facts of that case.
It does mean that I consider I should make an order in this case. That is based solely on the evidence I have heard and the arguments presented to me."
Finally for convenience he summarised over three pages all that he had expressed at length in the preceding 57 pages.
"I would have given such a proposal careful consideration were I satisfied that reducing the number would be of more than marginal significance to the mothers. I am not so satisfied."
"This was rejected by the mothers and they made it clear that the compromise was as unattractive to them as the full programme."
SEDLEY LJ:
The Correct Approach
The Scientific Case
SIR ANTHONY EVANS: