Specific issue orders: A matter of evidence

In the Family Law Journal, Alexandra Hirst considers the vaccination of children where the parents are not in agreement and the approach taken by the courts.

In M v H (Private Law Vaccination) [2020], the court was concerned with an application for a  specific issue order as to children’s vaccinations, with the judgment reviewing recent case law and what it reveals for practitioners about the nature of such applications. The application also included provision as to the Covid-19 vaccination, a matter that was not specifically determined by the court, but in relation to which it was said the usual principles would apply should that vaccine be added to the NHS schedule for children.

Background

The application before the court related to whether two siblings should be vaccinated in accordance with the NHS vaccination schedule. Children are offered Hib/MencC, MMR, Pneumococcal vaccine and MenB injections at one-year-old, followed by a second dose of MMR and a four-in-one pre-school booster at three years and four months.

The children were aged six and four and represented through a children’s guardian. The father applied under s8, Children Act 1989 (ChA 1989) for a specific issue order that the children be vaccinated, acting in person, with his position supported by the children’s guardian. The mother also acted in person. The father’s initial application related only to the MMR vaccine but he subsequently widened the remit 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.

MacDonald J noted that there was a single, simple legal issue in the case, namely, whether it was better for the children to have the vaccinations or not. The mother applied to adjourn the father’s application in order to obtain legal advice. The judge recorded that the mother had been able to set out in her statements detailed and cogent reasons as to why she opposed the application and was clearly well able to articulate her case. Concerns she raised over not wishing to be in court with the father due to allegations in respect of his previous behaviour were overcome by the fact that the hearing was conducted remotely. Delaying the application was also not considered to be in the children’s best interests. The judge therefore felt that it was safe to proceed with both parents acting in person.

Evidence

Before the court were two statements from the father, two statements from the mother and a position statement by the children’s guardian. The court heard oral evidence from all parties in addition to closing submissions from each parent. The mother invited the court to review information in articles and videos she had identified on the internet, including, notably, material by an American paediatrician who was a vocal advocate against vaccination.  It had been made clear to the mother that if she wished to rely on expert evidence, she would need to make an application pursuant to Pt 25, Family Procedure Rules 2010.

The mother raised the issue of expert evidence but in the context of adducing her own rather than seeking to appoint an independent joint expert. The judge had regard to the Court of Appeal decision in Re H (A Child: Parental Responsibility: Vaccination) [2020] (on which see more below) and found that in the absence of new, peer-reviewed evidence raising concerns about the vaccines in question or a well-evidenced contraindication specific to these children, expert evidence was not required where the application concerned vaccinations that have been approved and recommended by the relevant public health authorities.

Father’s case

The father argued that it was in the best interests of the children to have vaccinations in accordance with the NHS schedule for the following key reasons:

• the illnesses that the vaccinations seek to prevent can have debilitating effects;
• measles can be life-threatening;
• he had never been in agreement with ‘anti-vaccination’; and
• parents should be guided by the recommendations of the NHS and Public Health England.

The children’s guardian agreed with the father’s application, having regard to public policy and the decision in Re H and considered that the vaccinations would be in the children’s best interests.

Mother’s case

In response, the mother submitted that the children should not receive the vaccinations because:

• vaccination is not immunisation and some children will not produce antibodies in response to the vaccine and therefore it may not be effective in combatting the disease;
• the MMR vaccine does not provide lifelong immunity whereas contracting the diseases themselves would offer lifelong immunity;
• vaccination does not prevent a person from carrying a disease (undermining the notion that mass vaccination reduces the incidence of the disease);
• the diseases in question are childhood illnesses that, in healthy and well-nourished children, are generally mild with complications being uncommon in that group of children and fatalities being even less common;
• the children had good immune systems and would not therefore suffer from complications were they to contract the diseases and they should be tested for ‘natural immunity’;
• the children had been in contact with other diseases (like chicken pox) and had not become ill;
• further research is required in relation to the use of vaccinations on children and the recommendations of Public Health England were falling behind developing science;
• the side effects of vaccinations can be more detrimental than the diseases themselves;
• the vaccination programme is not compulsory and it would therefore be a breach of the children’s right to private and family life under Art 8 of the European Convention on Human Rights and an order to vaccinate the children would be tantamount to assault or grievous bodily harm; and
• the case should be distinguished from Re H as that was a public law case where there were concerns in respect of the children’s health.

Law

Where there is a disagreement in relation to medical treatment or vaccinations for children, an application can be made to the for a specific issue order under s8, ChA 1989. The fundamental principles set out in ChA 1989 apply including that the child’s welfare is the court’s paramount consideration (s1(1), ChA 1989). The court will also have particular regard to the factors in s1(3), ChA 1989 (the welfare checklist), namely:

• the wishes of the child taking into account age and understanding;
• physical, emotional and educational needs;
• the likely effect of any change in circumstances;
• age, sex and background;
• any harm which the child has suffered or is at risk of suffering; and
• the range of powers available to the court.

Pursuant to s1(5), ChA 1989, the court should not make an order, including a specific issue order, unless doing so would be better for the child than making no order at all.

Macdonald J set out (at para 40) the conclusions reached in Re H regarding the vaccination of children following what he refers to as a ‘meticulous and comprehensive review of the historical background and the case law’ (notably relating to private children law cases not just public law), and summarised those conclusions as follows:

• that vaccinations are not compulsory but scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated and the current established medical view is that the routine vaccination of infants is in the best interests of those children and for the public good;
• all evidence presently available supports the Public Health England advice and guidance that ‘unequivocally recommends’ a range of vaccinations as being in the interests both children and society as a whole and the specific immunisations recommended for children by Public Health England are set out in the routine immunisation schedule;
• that 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’;
• that the clarity regarding the evidence base for MMR and other vaccinations 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’, 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’;
• that 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 the vaccination of a child 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’;
• that 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’; and
• 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.

In response to the mother’s human rights argument, MacDonald J referred (at para 41) to Re K (Forced Marriage: Passport Order) [2020], where McFarlane P endorsed the four-point proportionality test set out in Bank Mellat v HM Treasury, ie:

• whether the objective of the measure pursued is sufficiently important to justify the limitation of a fundamental right;
• whether it is rationally connected to the objective;
• whether a less intrusive measure could have been used without unacceptably compromising the objective; and
• 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.

Outcome

MacDonald J considered it appropriate to only make a ruling in respect of vaccinations that are presently listed on the NHS vaccine schedule and duly ordered that the children should receive the vaccines, as the mother had not overcome the test set out in Re H. As to the human rights argument, the judge was satisfied that the objective of vaccination (protecting the children and the wider population from disease) was enough to justify the limitation of a fundamental right and met the objectivity test.

In relation to the question of vaccinations for future travel, MacDonald J considered that there were too many unknowns as he had no information about the proposed timing of the trips or where the children might be going. It was therefore impossible to know what vaccinations might be required, or what the state of health of the children would be at that point in time. The mother had also conceded in cross-examination that she would be open to discussing these vaccinations should the need arise.

The judge did not feel able to make a specific issue order in relation to the Covid-19 vaccination and made it very clear that this had nothing to do with his own views (or indeed anyone else’s view) about the nature of the vaccine, but simply that it was too early in the government’s vaccination programme to tell whether it would ever be offered to children. He did note that if the vaccine were to be added to the NHS schedule, it would be difficult to envisage a situation where it would not be endorsed by the court unless there was strong evidence negating its efficacy or safety, or if there were specific concerns relating to the health of the child or children to whom the application related.

Conclusion

The decision in M v H makes it clear that applicants seeking to obtain an order in favour of established vaccination programmes are likely to be successful, save in limited circumstances. Where a child is to travel to a country for which vaccinations are recommended, the applicant should be able to set out the details of the trip, medical evidence as to why such vaccines ought to be administered and why it would be in the best interests of the children and the court must have sufficient detail to give consideration to whether an order should be made and is likely to be wary of an application that is too wide.

As for vaccinations for novel diseases, such as Covid-19, the decision makes it clear that it is unlikely that the court will make an order in circumstances where there is no established vaccination programme or expert evidence as to why the subjects of the application particularly need the vaccine. Of course, this issue is particularly pertinent in the context of a mass vaccination programme and while vastly diverging views on the benefits of the Covid-19 vaccine are being discussed around the world.

Cases

M v H (Private Law Vaccination) [2020] EWFC 93

Re H (A Child: Parental Responsibility: Vaccination) [2020] EWCA Civ 664

Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190

Bank Mellat v HM Treasury [2013] UKSC 38

This article was first published in the Family Law Journal, May 2021