I direct that no official shorthand note shall be taken of this Judgment and that copies of this
version
as
handed
down
may
be treated as authentic. Covid-19 Protocol: This judgment was
handed
down remotely by circulation to the parties' representatives by email. The date and time for
hand-down
is deemed to be at 10.30am on 15 December 2020.
Mr
Justice
MacDonald:
INTRODUCTION
- In this
matter
the question before the court is whether it is in the best interests of P, born in 2014 and now aged 6, and T, born in 2016 and now aged 4, to be
vaccinated
in accordance with the NHS
vaccination
schedule. The application for a specific issue order under s 8 of Part II of the Children Act 1989 requiring the children to be
vaccinated
is
made
by the father of the children,
M.
The father appears in person. The application is resisted by the
mother
of the children,
H.
The
mother
also appears in person. The children are represented through their Children's Guardian by
Mr
Hunt
of counsel. The Children's Guardian supports the father's application.
- The father's application initially concerned the
MMR
vaccine
but ahead of this
hearing
the question before the court
has
widened to include each of the childhood
vaccines
that are currently included on the NHS
vaccination
schedule, the
vaccinations
that
may
be required in relation to future travel abroad by the children and
vaccination
against the coronavirus responsible for causing the COVID-19 infection. Notwithstanding that the ambit of the father's application
has
widened in the lead up to this
hearing,
I
have
decided that it is appropriate at this
hearing
to confine
my
decision to whether it is in the children's best interests to receive each of the
vaccines
that are currently included on NHS
vaccination
schedule, including the
MMR
vaccine.
- With respect to
vaccinations
for possible future travel, I am satisfied that it would not be appropriate today to
make
an order with respect to travel
vaccinations
that
may
or
may
not be required at some unspecified point in the future. The court
has
no information regarding when and to where such future travel by one or both of the children will take place and therefore, axiomatically, no information on the then extant requirements for
vaccination
in the destination identified (if any) or the then state of each child's
health
at the point at which such
vaccinations
are proposed should a dispute between the parents arise. Within this context, the
mother
stated during cross-examination by
Mr
Hunt
that she would be
happy
to consider travel
vaccinations
as and when the need arose and was "not ruling them out".
- I am also not prepared at this
hearing
to
make
a specific issue order with respect to the
vaccination
of the children against the coronavirus responsible for causing the COVID-19 infection. I wish to
make
abundantly clear to anyone reading this judgment that
my
decision to defer reaching a conclusion regarding the administration to the children of the
vaccine
against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that
vaccine.
Rather, it reflects the fact that, given the
very
early stage reached with respect to the COVID-19
vaccination
programme, it remains unclear at present whether and when children will receive the
vaccination,
which
vaccine
or
vaccines
they will receive in circumstances where a number of
vaccines
are likely to be approved and what the official guidance will be regarding the administration of the COVID-19
vaccine
to children. As I
make
clear at the conclusion of this judgment,
having
regard to the principles that I reiterate below it is
very
difficult to foresee a situation in which a
vaccination
against COVID-19 approved for use in children would not be endorsed by the court as being in a child's best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or
more
of the COVID-19
vaccines
or a well evidenced contraindication specific to that subject child.
However,
given a degree of uncertainty that remains as to the precise position of children with respect to one or
more
of the COVID-19
vaccines
consequent upon the dispute in this case
having
arisen at a point
very
early in the COVID-19
vaccination
programme, I am satisfied it would be premature to determine the dispute that
has
arisen in this case regarding that
vaccine.
- The father's application is
made
on ongoing
private
law
proceedings. Those proceedings are listed for further
hearing
before District Judge Brown on 21 December 2020 on the question of a child arrangements order.
Having
regard to the issues raised by the father's application, and in circumstances where the Children's Guardian was clear that it would be of considerable benefit for this discrete issue to be determined prior to the final
hearing
of the substantive proceedings, the Designated Family Judge referred this
matter
to
me
in
my
capacity as Family Division Liaison Judge for the Northern Circuit. On 1 December 2020 I agreed that the application for the specific issue order should be reallocated to
me
for early
hearing
prior to the final
hearing
of the substantive
private
law
proceedings. On 2 December 2020
Her
Honour
Judge Bancroft gave directions setting up a
hearing
before
me
to determine the application for a specific issue order.
- Within the foregoing context, at the outset of this
hearing
the
mother
made
an application to adjourn this
hearing
to enable
her
to secure legal representation.
Having
heard
submissions from the parties I refused that application. Whilst it is a significant step to deny to a party an adjournment for the purposes of obtaining legal representation, I was satisfied that the
mother
would not be prejudiced by the court taking that course in this case.
- The issue in this case is which of two competing courses of action is in the children's best interests and is not an issue that is legally complex. Within this context, as evident from
her
two comprehensive statements, the
mother
has
a detailed and intricate knowledge of the facts and
matters
she relies on in opposing the father's application. In those circumstances, I was satisfied that the
mother
was well able to argue
her
own case without the assistance of counsel. In addition, the
mother
made
clear to the court that the primary
motivation
for wishing to be represented by counsel was because she was concerned about being in court with the father in light of previously alleged conduct on
his
part.
However,
this case proceeds as a remote
hearing
and, whilst required to see the father on the screen, the
mother
was accordingly not required to be in the same room as the father. Finally, the issue of
vaccination
has
now
hung
over the substantive proceedings since
March
2019. As I
have
noted above, the Children's Guardian is clear that it would be of considerable benefit for this dispute between the parents to be determined prior to the final
hearing
of the substantive proceedings. Within this context, I was satisfied that the delay caused by an adjournment of the application would be inimical the children's best interests, leaving as it would this dispute outstanding as at the date of the final
hearing
on 21 December 2020.
- As I
had
anticipated, the
mother
conducted the
hearing
in a way that demonstrated complete
mastery
of the evidence and principles on which she relies in opposition to the father's application, including cross-examination of the father (undertaken by addressing
her
questions to
me,
with the father then providing
his
answer to those questions) and of the Children's Guardian. The
mother
also
made
carefully structured and detailed oral closing submissions summarising
her
arguments before the court. During the course of the
hearing
I also allowed the
mother
time, when requested, to collect
her
thoughts with respect to the questions she wished to ask of the father and with respect to those
matters
she wished to address by way of closing submissions. The
mother
remained scrupulously courteous and calm throughout the
hearing,
notwithstanding that the issue before the court is clearly one that she feels
very
strongly about.
- In determining the father's application for a specific issue order I
have
had
the benefit of two statements from the father, two statements from the
mother
and the Position Statement of the Children's Guardian. As I
have
alluded to, I
have
also
had
the benefit of
hearing
evidence from the father, the
mother
and the Children's Guardian and closing submissions from the parents and from
Mr
Hunt
on behalf of the children. The
mother
also invited the court to consider a number of pieces of information gleaned from the Internet, including
videos
posted on YouTube featuring an American paediatrician called Larry Palevsky and an American nephrologist called Suzanne
Humphries,
and I
have
done so.
- Finally by way of introduction, the court does not
have
before it a jointly instructed expert report in this case with respect to the safety and efficacy of the childhood
vaccines
currently set out on the NHS
vaccination
schedule. On 2 December 2020 the order of
HHJ
Bancroft recorded as follows:
"The
Mother
was informed that if she seeks to rely on expert evidence she needs to
make
an application in writing before the next
hearing
and any application will be considered at the next
hearing".
- The
mother
has
made
no application for a jointly instructed expert pursuant to Part 25 of the FPR 2010. Whilst the
mother
did, at the start of this
hearing,
raise the issue of expert evidence, it was plain that she was contemplating instructing
her
own expert in support of
her
case rather than seeking permission for a jointly instructed expert report on the issues in dispute before the court. In any event,
having
regard to the observations of the Court of Appeal in Re
H
(A Child: Parental Responsibility:
Vaccination)
[2020] EWCA Civ 664 at [54] that I deal with in
more
detail below, I am satisfied that absent new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or
more
of the
vaccines
that is the subject of the application or a well evidenced contraindication specific to that subject child, it is not necessary for the court to
have
the assistance of expert evidence in cases where the question in issue is whether a child should or should not
have
vaccinations
that
have
been approved and recommended by the relevant public
health
authorities.
BACKGROUND
- This case
has
an unfortunate background
history
that is common to
many
cases in which disputes arise with respect to the welfare of children following relationship breakdown.
- The
mother
and father were in a relationship from 2004 to 2017. Subsequent to the breakdown of the parties' relationship earlier proceedings in relation to the children were stayed for the purposes of
mediation.
The father issued
his
present application for a child arrangements order and a specific issue order on 4
March
2019. Within the application for a specific issue order the father sought an order requiring that the children be
vaccinated
with the
MMR
vaccine.
Notwithstanding this, it is clear that the primary focus of these proceedings since they were issued in
March
2019
has
been on the issue of a child arrangements order.
- Shortly after the issue of those proceedings the
mother
asserted that the children
had
made
statements that she understood to be allegations of sexual abuse by the father. This resulted in the father being arrested and interviewed by police. No further action was taken by the police. In addition, allegations of domestic abuse in the parents' relationship were also raised against the father by the
mother.
- In light of allegations
made
by the
mother,
the
matter
was listed for a finding of fact
hearing,
which
hearing
took place on 22 to 24 January 2020 before District Judge Brown. Whilst a large number of allegations
had
initially been placed before the court, in the event only two findings were pursued before the court. Findings of sexual abuse were not pursued against the father. Within this context, in a judgment delivered on 11 February 2020 the District Judge found that on one occasion the father struck the
mother,
causing
her
to fall to the floor in front of P, and on one occasion, attended the
mother's
home,
banged on the door, was
verbally
abusive, threatened not to return the children and drove
his
car in a dangerous
manner,
striking and damaging a gate post. The District Judge considered that those findings did not constitute a bar to direct contact between the children and their father.
- Contact
has
not progressed smoothly since the finding of fact
hearing.
At a
hearing
on 27
March
2020 the Children's Guardian recommended that the children should gradually spend
more
time with the father,
moving
ultimately to an arrangement akin to the care of the children being shared between the parents.
Mr
Hunt
informs the court that the recommendation of the Children's Guardian at this point in the proceedings was informed by their stated wish to
have
a relationship with their father. Little progress was then
made
following the
hearing
on 27
March
2020 but a further limited and gradual re-introduction and increase in contact was agreed between the parents at a further
hearing
on 13
May
2020 with a final
hearing
to deal with still contested
matters
listed on 19 and 20 August 2020. At that final
hearing
a further agreement was reached on the issue of child arrangements, with a comprehensive plan for increasing contact being put in place. As I
have
noted above, the further final
hearing
with respect to child arrangements for P and T is listed on 21 December 2020.
- The
matter
now comes before
me
for determination of the father's application for a specific issue order in the circumstances I
have
outlined above.
SUBMISSIONS
The Father
- The father submits that it is in the children's best interests to
have
their childhood
vaccinations
as specified on the NHS schedule of
vaccinations,
including the
MMR
vaccine.
He
is concerned that the illnesses against which the children can be
vaccinated
by reference to the NHS schedule of
vaccinations
can
have
debilitating outcomes for children if caught by them. The father points to the fact that
measles
can be "life threatening". The father contends that
he
has
never been in agreement with "anti-
vaccination"
and asserts the position with respect to
vaccination
of the children
has
been controlled by the
mother.
The father submits that it is appropriate for a parent to be guided by the recommendations of the NHS and Public
Health
England (
hereafter
PHE) in deciding whether
vaccinate
the children in circumstances where
he
is not an expert in immunology and infectious diseases.
The
Mother
- As I
have
noted, the
mother
filed and served two detailed statements setting out in clear terms
her
objection to the father's application. It is clear that those statements represent, in part, the product of what the
mother
described in evidence as six years' worth of extensive "research" into the question of
vaccination.
In circumstances where the
mother
readily conceded during cross-examination by
Mr
Hunt
that she
had
no scientific qualifications beyond school level biology, it was also clear that the
mother
used the term "research" to describe the process of information gathering online that
had
provided
her
with the
material
which underpinned
her
arguments against the
vaccination
of the children.
- The
material
relied on by the
mother
in
her
statements comprised a newspaper article, a document that purported to be the factsheet from an
MMR
vaccine,
a flyer entitled "The Babies Aborted for
Vaccines",
a list of papers which, and doctors who
maintain
that there is a link between the
MMR
vaccine
and autism, a list entitled "
Historical
Data on
Vaccines
and Outbreaks" and, as I
have
mentioned,
material
from an American paediatrician called Larry Palevsky, who the
mother
described as "world renowned" but who also appears, from the information contained in the
mother's
evidence and the online
material
she invited
me
to consider, to be a
very
vocal
advocate against
vaccination
engaged in advancing a
very
specific anti-
vaccine
agenda. In
her
second statement the
mother
cited a paper said to demonstrate that refined sugar reduces a child's immunity for up to five
hours,
a paper said to demonstrate the
health
outcomes for unvaccinated children are better than for
vaccinated
children and a YouTube link to a
video
from Dr Suzanne
Humphries,
an American nephrologist. Once again, it is apparent from this
material
that Dr
Humphries
is also
very
vocal
advocate against
vaccination
engaged in advancing a
very
specific anti-
vaccine
agenda.
- Within the context of the foregoing information, the
mother's
objections to the children receiving the
vaccinations
specified on the NHS
vaccination
schedule can be distilled into the following grounds.
- First, the
mother
repeatedly asserted that "
vaccination
is not immunisation". As noted by Lady Justice King in Re
H
(A Child: Parental Responsibility:
Vaccination)
at [3], "
Vaccination
is the administration of a
vaccine
to
help
the immune system develop protection from a disease. Immunisation is the process of becoming immune to the disease following
vaccination."
Within this context, by
her
submission the
mother
appeared to
mean
that a given
vaccination
is not 100% effective and will result, in some children, in no antibodies being produced and, therefore, in no immunity against the disease in question. In this context, the
mother
cited information she contends demonstrate that
vaccinations
result in no antibodies being produced in between 2 and 10% of cases. This of course
means
that, if those figures are correct, antibodies are produced in between 90 and 98% of cases. Thus the
mother's
first argument is perhaps
more
accurately expressed as '
vaccination
is not inevitably immunisation'. Further, the
mother
asserted that the
MMR
vaccine
does not offer lifelong immunity, by contrast to contracting the diseases which the
MMR
vaccinates
against, which the
mother
asserted confers lifelong immunity.
- Second, the
mother
contended that
vaccination
does not prevent a person from "carrying" the disease. By this submission, I took the
mother
to be suggesting that this undermines the assertion that
vaccination
reduces the incidence of disease in a given population.
- Third, the
mother
contends that the diseases against which the NHS
vaccination
schedule provides for
vaccination
are childhood illnesses which, in
healthy
and well-nourished children, are generally
mild,
with serious complications being uncommon in that group of children and fatal complications being even less common in that group of children. Within this context, the
mother
submitted that, in circumstances where P and T
have
a
mainly
organic,
vegetarian
diet
high
in nutrients and
minerals
and low in refined sugar (the
mother
contending that the latter lowers the effectiveness of white blood cells in their immunological role), she boosts the children's immune systems appropriately. As a result, the
mother
contends that P and T
have
strong immune systems and that, accordingly, should they contract the diseases against which
vaccination
is recommended by PHE they would not suffer complications (some of which, such as the danger or rubella in pregnancy, are in any event not relevant to the children) and would recover easily. The
mother
also relies on the fact that the children's "wellness" is kept
high,
they spend a good deal of time outside and therefore "absorb lots of
vitamin
D" and that immunity can be genetically inherited, the father in this context
having
had
mumps.
In these circumstances, the
mother
asserts that the children are not in any of the "at risk" categories for complications in childhood diseases and do not require
vaccination.
As evidence of this, the
mother
asserts that the children
have
been in contact with diseases such as Chicken Pox "as well as lots of other
viruses,
colds" but
have
not become ill.
- Fourth, the
mother
contends that further research is required into question the efficacy and probity of
vaccinations
for children generally. In particular, the
mother
concentrated on concerns she asserts exist regarding the ingredients in the
MMR
vaccines.
The
mother
provided a detailed breakdown on the ingredients she contends such
vaccines
contain, and
makes
clear
her
objection to those ingredients being injected into the children, the crux of the
mother's
submission in this context being that this is wrong to do so without studies being done into the long term effects of the ingredients in the
vaccine,
with further studies required to "confirm that this is a safe delivery
method
of
vaccines
and the long term effect [of] the ingredients entering the brain." Within this context, the
mother
articulated
her
fear that decisions will be
made
in favour of
vaccinating
children before the evidence comes to light to demonstrate it is dangerous and detrimental to do so.
- Fifth, at the same time the
mother
asserts that recommendations of PHE regarding the
vaccination
of children are falling behind the developing science. Within this context, the
mother
asserts that new research undermining the probity and efficacy of
vaccination
is not being taken into account by the Government or Public
Health
England. In particular, the
mother
told the court that,
having
"listened to the experts who know about these things", there are signs of
vaccines
possibly being responsible for long-term
health
issues in children
more
serious than the childhood illnesses they aim to prevent. In particular, the
mother
relies on what she contends are studies that increasingly show that the
health
outcomes of unvaccinated children are better than those for
vaccinated
children. The
mother
further asserted, without referring to any peer reviewed research, that there are studies being done on some of the ingredients of
MMR
vaccine,
such as the
MSG
and neomycin, which are starting to prove links between
vaccination
and Alzheimer's disease.
- Sixth, the
mother
contends that the side effects of
vaccines
are
more
detrimental to children than the effect of the diseases they
vaccinate
against. In this regard, the
mother
submitted that payments
made
by the UK
Vaccine
Damage Payments Unit confirms that "
vaccine
damage is real" and that the balance of
harm
falls in favour of refusing
vaccinations.
The
mother
sought to demonstrate this by comparing what she contended
have
been only two deaths of children under ten years of age from
measles
in the last 10 years (relying on ONS data) with the far greater number of claims that
have
been to the UK
Vaccine
Damage Payments Unit. Further the
mother
contends that, if
vaccinated,
there is a
high
chance that the children will develop a
mild
form of the relevant diseases (although this is not necessarily consistent with the
mother's
assertions regarding the strength of P and T's immune systems) without the guarantee of immunity and without achieving lifelong immunity.
- Seventh, the
mother
argued that, in any event, the children should be tested for "natural immunity" before the court
moves
to authorise the
vaccination
of the children. By this submission the
mother
appeared to be contending for testing to show whether the children
had
already
had
the diseases in question asymptomatically and therefore were immune to the same without the need for the administration of
vaccines
in accordance with the NHS schedule of
vaccinations.
As I
have
noted, the
mother
contended that contracting the disease for the children would result in "lifelong natural immunity" for them.
- Eighth, the
mother
submitted that, in circumstances where
vaccinations
are not compulsory in the United Kingdom and she is not alone amongst parents objecting to the
vaccination
of children, any specific issue order
made
by the court requiring the children to be
vaccinated
would amount to an unnecessary and disproportionate breach of the children's right to
private
and family life under Art 8 of the ECHR. Indeed, the
mother
went further and asserted that, in this context, to order the
vaccination
of the children "would constitute assault or even grievous bodily
harm".
In this context, the
mother
relied on an assertion that, when together, she and the father
had
agreed between themselves not to
have
the children
vaccinated
after discussing the issue in detail and after a nurse
had
been unable to answer their questions satisfactorily at one of the appointments at which
vaccination
was due to take place.
- Ninth, and finally, the
mother
argues that this case is distinguishable to those reported previously in the authorities, and in particular can be distinguished from the decision of the Court of Appeal in Re
H
(A Child: Parental Responsibility:
Vaccination).
Prior to the
hearing,
and in circumstances where the
mother
and the father appear in person, I caused a copy of that authority to be circulated to the parties in circumstances where it was an authority that the court would be required to consider and an authority that
helpfully
summarises the
law
in this area. With respect to the principles articulated in Re
H
(A Child: Parental Responsibility:
Vaccination),
the
mother
submitted that Re
H
(A Child: Parental Responsibility:
Vaccination)
was a case concerning public
law
proceedings and that, in this case, there are no wider concerns regarding the children's welfare, both children being well cared for and, for the reasons advanced by the
mother
that I
have
rehearsed,
having
robust and well
maintained
immune systems. Within this context, the
mother
urged the court to determine this case "in isolation" from previous decisions, including that of Re
H
(A Child: Parental Responsibility:
Vaccination).
The Children's Guardian
- The Children's Guardian submitted that in light of the background to this case, the protracted litigation and the difficulties with the parents being able to compromise, the Court needs to determine the issue of
vaccination
without delay in order that the parents can concentrate on resolving the issue of child arrangements. Within this context, the Children's Guardian is clear in
her
recommendation that, taking into account public policy, the recommendations of PHE and the NHS and the decision in Re
H
(A Child: Parental Responsibility:
Vaccination),
it is plainly in the children's best interests to be
vaccinated
in accordance with the NHS schedule of
vaccinations.
The Children's Guardian contends that
having
regard to these
matters,
the court is able safely to conclude that the risk to T and P's
health
in respect of not receiving any recommended
vaccinations
would be far greater to their
health
than the risk of T and P receiving
vaccinations.
Within this context, the Children's Guardian urges the court to
make
the specific issue order with respect to
vaccination
sought by the father in this case with respect to both P and T.
THE
LAW
- Section 3(1) of the Children Act 1989 defines parental responsibility as "all the rights, duties, powers, responsibilities and authority which by
law
a parent of a child
has
in relation to the child and
his
property."
- As I noted in
H
v
A (No.1) [2015] EWFC 58, the rights, duties, powers, responsibilities and authority that comprise 'parental responsibility' are contingent in nature because they are inseparably connected with a parent's obligation to
meet
the welfare needs of
his
or
her
children and arise out of that obligation. A parent's rights, duties, powers, responsibilities and authority insofar as they concern their children are only derived from their obligations as a parent and exist only to secure the welfare of their children (see Family
Law
Review of Child
Law,
Guardianship and Custody
Law
Com. 172 (1988) para 2.4 and Art 18 of the United Nations Convention on the Rights of the Child). Within this context the concept of parental responsibility "emphasises that the duty to care for the child and to raise
him
to
moral,
physical and emotional
health
is the fundamental task of parenthood and the only jurisdiction for the authority it confers" (see Introduction to the Children Act
HMSO
1989 para 1.4).
- Thus, in Re D (A Child) [2014] EWCA Civ 315 Lord Justice Ryder (as
he
then was) reiterated that the concept of parental responsibility describes an adult's responsibility to secure the welfare of their child, which is to be exercised for the benefit of the child not the adult. The status conferred by parental responsibility relates to welfare and not the
mere
existence of paternity or parenthood.
- Within the foregoing context, the courts
have
repeatedly emphasised that in
most
cases it is in a child's best interests for both parents to
have
and to exercise parental responsibility for the child together. In this case, both parents
have
parental responsibility for P and T but they disagree fundamentally with respect to the best course of action in each child's best interests when it comes to
vaccination.
- Section 2(7) of the Children Act 1989 provides that where
more
than one person
has
parental responsibility, each of them
may
act alone and without the other (or others) in
meeting
that responsibility (although nothing in s 2(7) of the Act is to be taken to affect the operation of any enactment that requires the consent of
more
than one person in a
matter
affecting the child).
However,
Section 2(7) of the 1989 Act does not give one party priority over the other in the exercise of parental responsibility.
- Within this context, whilst in Re
H
(A Child: Parental Responsibility:
Vaccination)
the Court of Appeal raised the question of whether, when there is a dispute between parents with parental responsibility regarding
vaccination,
that dispute should still continue to be a
matter
which
must
be brought to court, per Thorpe LJ in Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095, in Re
H
(A Child: Parental Responsibility:
Vaccination)
at [94] King LJ ultimately observed as follows:
"Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between
holders
of parental responsibility, there is in
my
judgment a fundamental difference as between a
private
law
case and a case concerning a child in care. In
private
law,
by s.2(7) CA 1989, where
more
than one person
has
parental responsibility, each of them
may
act alone and without the other. Section 2(7) does not
however
give one party dominance or priority over the other in the exercise of parental responsibility. Each parent
has
equal parental responsibility, even though the day to day realities of life
mean
that each frequently acts alone. This applies particularly where the parties live in separate
households
and one parent is the primary carer. As Theis J put it in F
v
F at paragraph [21], "in
most
circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect." As neither parent
has
primacy over the other, the parties
have
no option but to come to court to seek a resolution when they cannot agree."
- Thus, where two parents with parental responsibility disagree as to the proper course of action with respect to
vaccination,
the court becomes the decision
maker
through the
mechanism
of a specific issue order
made
pursuant to its jurisdiction under s 8 of the Children Act 1989. When considering whether to grant a specific issue order requiring
vaccination
as being in each child's best interests, those best interests are the court's paramount consideration pursuant to s 1(1) of the 1989 Act and the court
must
have
regard to the
matters
set out in the 'welfare checklist' contained in s 1(3) of the Children Act 1989 (Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095). Pursuant to s 1(5) of the 1989 Act the court should not
make
a specific issue order unless doing so would be better for the child than
making
no order at all. With respect to the
matters
that inform the exercise of the court's jurisdiction under s 8 of the 1989 Act where the parental dispute concerns
vaccination,
the courts
have
considered the issue in a number of cases.
- In Re C (Welfare of Child: Immunisation) Thorpe LJ
made
clear that there is no general proposition of
law
that the court will not order
vaccination
in the face of rooted opposition from the child's primary carer. In Re B (A Child: Immunisation) [2018] EWFC 56
His
Honour
Judge Clifford Bellamy sitting as a
High
Court judge observed as follows at [93] to [94], in a passage expressly endorsed by the Court of Appeal in Re
H
(A Child: Parental Responsibility:
Vaccination)
at [74]:
"[93] In
making
that order, like
MacDonald
J, I
make
it clear that
my
judgment is not a commentary on whether immunisation is a good thing or a bad thing generally. I am not saying anything about the
merits
of
vaccination
more
widely. I do not in any way seek to dictate
how
this issue should be approached in other situations. I am concerned only to determine what is in B's best welfare interests.
[94] That said, it is, in
my
judgment, appropriate to
make
the point that this is now the sixth occasion when the court
has
had
to determine whether a child should be
vaccinated
in circumstances where a birth parent objects. On each occasion the court
has
concluded that the child concerned should receive the recommended
vaccine
(save that in Re C and F (Children) Sumner J decided that the older child, aged 10, should not
have
the
HIB
vaccine,
because the danger for
her
had
past, or the Pertussis
vaccine,
because there was no approved
vaccine
for a child of
her
age). With respect to the
vaccines
with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those
vaccines,
it is difficult to see
how
a challenge based on efficacy or safety would be likely to succeed."
- Finally, as I
have
noted and within the foregoing context, in Re
H
(A Child: Parental Responsibility:
Vaccination)
the Court of Appeal undertook a comprehensive review of this area. Whilst that case concerned public
law
proceedings under Part IV of the Children Act 1989, the Court of Appeal also reviewed the position in
private
law
proceedings under Part II of the 1989 Act. Within the context of its
meticulous
and comprehensive review of the
historical
background and the case
law,
the Court of Appeal articulated the following conclusions with respect to the
vaccination
of children generally:
i) It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be
vaccinated
in accordance with the Public
Health
Guidelines but there is at present no legal requirement in this jurisdiction for a child to be
vaccinated.
ii) Although
vaccinations
are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise
healthy
children to be
vaccinated,
the current established
medical
view
being that the routine
vaccination
of infants is in the best interests of those children and for the public good.
iii) All the evidence presently available supports the Public
Health
England the advice and guidance that unequivocally recommends a range of
vaccinations
as being in the interests both children and society as a whole.
iv) The specific immunisations which are recommended for children by Public
Health
England are set out in the routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.
v)
The evidence base with respect to
MMR
overwhelmingly identifies the benefits to a child of being
vaccinated
as part of the public
health
initiative to drive down the incidence of serious childhood and other diseases.
vi)
The clarity regarding the evidence base with respect to
MMR
and the other
vaccinations
that are
habitually
given to children should serve to bring to an end the approach whereby an order is
made
for the instruction of an expert to report on the intrinsic safety and or efficacy of
vaccinations
as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child
has
an unusual
medical
history
and consideration is required as to whether the child's own circumstances throw up any contra-indications.
vii)
Subject to any credible development in
medical
science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be
vaccinated
is that the benefit in
vaccinating
a child in accordance with Public
Health
England guidance can be taken to outweigh the long-recognised and identified side effects.
viii)
Parental
views
regarding immunisation
must
always be taken into account but the
matter
is not to be determined by the strength of the parental
view
unless the
view
has
a real bearing on the child's welfare.
ix) This approach to the
medical
issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of
vaccination.
- Finally with respect to the
law,
the
mother
contends that a specific issue order requiring the
vaccination
of the children would breach their right to respect for
private
and family life under Art 8 of the ECHR. Within this context, I note that in Re K (Forced
Marriage:
Passport Order) [2020] EWCA Civ 190 at [44] the President endorsed the approach to proportionality in Bank
Mellat
v
HM
Treasury (No 2) [2013] 3 WLR 179 a follows:
"[44] Further, I, like
Moylan
LJ, would specifically draw attention to the approach that is to be adopted to an assessment of proportionality as described by Lord Reed JSC in Bank
Mellat
v
HM
Treasury (2) as set out in paragraph 33 of
Moylan
LJ's judgment. All four of the elements in the four part test in Bank
Mellat
are important and, for completeness, the full test is:
(1) whether the objective of the
measure
pursued is sufficiently important to justify the limitation of a fundamental right;
(2) whether it is rationally connected to the objective;
(3) whether a less intrusive
measure
could
have
been used without unacceptably compromising the objective; and
(4) whether,
having
regard to these
matters
and to the severity of the consequences, a fair balance
has
been struck between the rights of the individual and the interests of the community.
(See Bank
Mellat:
Lord Sumption at [20]; and especially on question (3), per Lord Reed at [70] to [71] and [75] to [76])."
DISCUSSION
- I am satisfied that it is in the best interests of both P and T to
make
a specific issue order pursuant to s. 8 of the Children Act 1989 requiring each of the children to be given each of the
vaccines
that are currently specified on the NHS
vaccination
schedule.
My
reasons for so deciding are as follows.
- There was little dispute between the parents with respect to the factual background to this application, although they did diverge on the extent to which, originally, they
had
been in agreement that the children should not be
vaccinated.
The
mother
contended that, when together, she and the father
had
agreed between them not to
have
the children
vaccinated
after discussing the issue in detail and after a nurse
had
been unable to answer their questions satisfactorily at one of the appointments at which
vaccination
was due to take place. For
his
part, the father demurred with respect to this assertion. Whatever the true position, and as I observed on a number of occasions during the course of the
hearing,
it is now abundantly clear that there exists a frank dispute between parents who each
hold
parental responsibility as to whether the children should be
vaccinated,
which dispute is not capable of compromise between them and that, in the circumstances, accordingly requires the court to determine by way of a specific issue order under s.8 of the Children Act 1989.
- In Re
H
(A Child: Parental Responsibility:
Vaccination)
the Court of Appeal came to the clear conclusion that we
have
now reached the point where, whilst not compulsory, scientific evidence establishes that it is generally in the best interests of otherwise
healthy
children to be
vaccinated,
the current established
medical
view
being that the routine
vaccination
of infants is in the best interests of those children and for the public good. Within this context, the Court of Appeal was equally clear that, subject in each case to the broad range of welfare factors the court is required to consider when determining an application for an order under s.8 of the 1989 Act, a court will be unlikely to conclude that immunisation with the
vaccines
that are recommended for children by Public
Health
England and set out in the routine immunisation schedule is not in a child's best interests absent (a) a credible development in
medical
science or new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or
more
of the
vaccines
that is the subject of the application and/or (b) a well evidenced
medical
contraindication specific to the child or children who are subject of the application. I am satisfied that neither
has
been demonstrated by the
mother
in this case.
- With respect to the first point, the Court of Appeal further
made
clear in Re
H
(A Child: Parental Responsibility:
Vaccination)
by its endorsement of the observations of the court in Re B (A Child: Immunisation), the court will only be in a position to conclude that there significant concern for the efficacy and/or safety of one or
more
of the
vaccines
that is the subject of the application if there is a credible development in
medical
science or new research demonstrating this. That will require, at a
minimum,
the existence of new, peer reviewed research conducted by a reputable specialist or institution. Further, if such credible, peer reviewed research were to emerge then, within the context of an application before the court concerning disputed
vaccinations,
it would likely need to be the subject of a jointly instructed expert report authored by an expert in the field of immunology instructed in accordance with the long established principles underpinning the admission of expert evidence pursuant to FPR Part 25.
- There is before this court no credible development in
medical
science or new peer reviewed research demonstrating to the required standard a significant concern for the efficacy and/or safety of any of the
vaccines
currently listed on the NHS
vaccination
schedule. Whilst the
mother
has
put before the court
material
from a
variety
of online sources, and whilst she clearly places great store by the
material
on which she relies, none of that
material
constitutes evidence of a credible development in
medical
science or reliable, peer reviewed research concerning the safety and/or efficacy of the
vaccines
in issue. Further, and within this context, it is important to be clear that tendentious, partial and partisan
material
gathered from the Internet (what Sedley LJ in Re C (Welfare of Child: Immunisation) accurately characterised as "junk science") and placed before the court to support a personal belief regarding the probity and/or efficacy of
vaccinations
does not and cannot amount to evidence capable of demonstrating to the required standard a significant concern for the efficacy and/or safety of any of the
vaccines
currently listed on the NHS
vaccination
schedule. As Thorpe LJ noted in Re C (Welfare of Child: Immunisation) at [23], it is important that partisan
material
that pursues a particular contentious agenda with respect to
vaccination
is not allowed to distort the forensic process with which the court is engaged, which forensic process
must
be informed by reliable, scientifically credible evidence:
"[23] In the end I do not find any of the authorities cited by
Miss
Gumbel directly in point. Nor is direct authority necessary once the present case is seen not as some significant novelty requiring guidance from this court but as a standard s 8 application which
has
attracted a great deal of publicity and public interest simply because the specific issue in dispute is both topical and contentious in the wider society to which we all belong. But that wider dimension
must
not distort the forensic processes leading to the determination of whether the application should be granted or refused."
- Within the foregoing context, I
have
of course borne carefully in
mind
the
mother's
strongly expressed
views
regarding the probity of
vaccinating
the children.
However,
in doing so I
must
be guided by the approach articulated by the Court of Appeal in Re
H
(A Child: Parental Responsibility:
Vaccination)
which
made
clear at [101] that "while the
views
of parents
must
always be taken into account, the weight that is given to them depends not upon the
vehemence
with which they are expressed but upon their substance". Within this context, whilst the
mother
holds
a
very
firm belief regarding the probity of
vaccinating
P and T, that position is based on
her
strong personal belief that
vaccination
is not required and presents a greater risk than do the diseases being
vaccinated
against rather than on any credible evidence indicating significant concern for the efficacy and/or safety of one or
more
of the
vaccines
that is the subject of this or a well evidenced
medical
contraindication specific to one or both of the children. In these circumstances, whilst strongly
held,
I am not able to attach determinative weight to the objections raised by the
mother
in this case.
- With respect to the second point, namely whether there exists a well evidenced
medical
contraindication specific to the children who are subject of the application, there is no evidence before the court to suggest that for either P or T the
vaccinations
recommended by PHE and listed in the NHS
vaccination
schedule are
medially
contraindicated.
- Finally, with respect to the
mother's
submission that to
make
a specific issue order requiring the children to receive the
vaccinations
set out in the NHS schedule of
vaccinations
would constitute a disproportionate interference in the Art 8 rights of P and T, I am not able to accept that submission. In so far as
making
a specific issue order requiring the children to receive the
vaccinations
set out in the NHS schedule of
vaccinations
amounts to an interference in the children's Art 8 rights (as to which I express no definitive
view),
I am satisfied that the objective of
vaccination,
namely to protect the children from the consequences of the diseases
vaccinated
against and the population
more
widely from the spread of such diseases, is sufficiently important to justify the limitation of a fundamental right and is rationally connected to the objective. Within the context of
vaccination,
I am further satisfied that a less intrusive
measure
(for example the dietary options advanced by the
mother)
could not be used without unacceptably compromising the objective of the
vaccination
programme. Finally, within the context of the twin objectives of the
vaccination
programme in seeking to protect the children from the consequences of the diseases
vaccinated
against and to protect the population
more
widely from the spread of such diseases, and
having
regard to the well evidenced consequences of such infections for individuals and their spread within communities, I am satisfied that the specific issue order requiring
vaccination
strikes a fair balance between the rights of P and T and the interests of the community.
- In all the circumstances,
holding
P and T's best interests as
my
paramount consideration and
having
regard to the
matters
I am required to consider under s. 1(3) of the Children Act 1989, I am satisfied that best interests of both P and T to be
vaccinated
in accordance with the NHS
vaccination
schedule. It is now clearly established on the basis of credible, peer reviewed scientific evidence that it is generally in the best interests of otherwise
healthy
children to be
vaccinated
with those
vaccines
recommended for children by Public
Health
England and set out in the routine immunisation schedule which is found in the Green Book published in 2013 and updated as necessary since. It is equally well established that the benefit in
vaccinating
a child in accordance with Public
Health
England guidance can be taken to outweigh the long-recognised and identified side effects. The
mother
has
placed no evidence before the court to gainsay these conclusions in respect of P and T, either by way of a
medical
contra-indication specific to either child or new, credible evidence regarding the safety and efficacy of the
vaccines
set out in the NHS schedule of
vaccinations.
I am satisfied on the evidence before the court that there are no other welfare considerations that are contra-indicative to P and T to receiving those
vaccinations
having
regard to s. 1(3) of the Children Act 1989.
CONCLUSION
Having
regard to the reasons set out above, I
make
a specific issue order pursuant to s. 8 of the Children Act 1989 requiring each of the children to be given each of the childhood
vaccines
that are currently specified on the NHS
vaccination
schedule with the father to be responsible for arranging the same and ensuring T and P are taken to the GP for scheduled immunisations for the remainder of their childhood. A copy of the order in this regard will be sent to the children's GP by the solicitor for the children and placed on each of the children's
medical
records. I will reserve to
myself
in the first instance any future applications with respect to
vaccinations
against the
virus
responsible for causing COVID-19 and
vaccinations
for the purposes of travel.
- Finally, whilst the Court of Appeal did not reach a definitive conclusion on the question of whether, in
private
law
proceedings, the question of
vaccination
should or should not continue to require court adjudication where there is a dispute between
holders
of parental responsibility, the observations of the Court of Appeal in in Re
H
(A Child: Parental Responsibility:
Vaccination)
summarised at paragraph [40] of this judgment, whilst strictly obiter,
make
it
very
difficult now to foresee a case in which a
vaccination
approved for use in children, including
vaccinations
against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child's best interests, absent a credible development in
medical
science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the
vaccine
or a well evidenced
medical
contraindication specific to the subject child.
- That is
my judgment.