B (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby |
| Judgment Date | 07 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1545 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2012 |
| Docket Number | Case No: B4/2012/2346 |
[2012] EWCA Civ 1545
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HER HONOUR JUDGE MIRANDA ROBERTSHAW)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Munby
Case No: B4/2012/2346
The Appellant appeared in person.
The Respondent did not appear and was not represented.
This is a father's application for permission to appeal against an order made in the Plymouth County Court on 29 August 2012 by HHJ Robertshaw, the matter having been adjourned into court by McFarlane LJ by an order dated 17 September 2012.
The proceedings are private law proceedings between the father and his previous partner, the mother, in relation to a little girl who is about three-and-a-half years old. It is apparent from the material before me that the proceedings have been protracted and to a degree acrimonious. It is also the case that there had been, until the hearing before HHJ Robertshaw, a striking lack of judicial continuity.
When the matter came before HHJ Robertshaw she was concerned with three broad categories of topic. The immediate matter of pressing and important concern was a dispute as to whether the little girl should have her booster MMR immunisation: mother said that she should; father said that she should not; HHJ Robertshaw decided that she should. The second group of issues related to the arrangements for contact which, it is apparent, have been difficult. The focus seems to have been on the location and mechanics of handover in a case where the relations between the mother and the father had historically been such that there was in place, as at the date of the hearing before HHJ Robertshaw, both a non-molestation injunction and certain bail conditions. The third group of issues related to the case management of the case, with a view to its proper preparation for a final hearing which, in the event, has been fixed for 5 February 2013.
In relation to the question of the immunisation HHJ Robertshaw, as I have said, agreed with the mother. She dismissed the father's application for a specific issue order preventing that, and by her order provided:
"The immunisation can proceed with the consent of the mother alone and Dr G Wills MP or the medical clinician appointed by him to carry out the immunisation can proceed without the father's consent."
The father was very concerned that his daughter should not be immunised, not least, as I understand it, because a similar immunisation in part of the wider family has, to his belief, caused problems for the relevant child, and he wished to appeal the order which HHJ Robertshaw had made.
By the time the matter came to this court it appeared that the immunisation had in fact already taken place, but McFarlane LJ in the order I have already mentioned, in order to preserve the position if contrary to the court's information it had not taken place, granted an order staying that part of HHJ Robertshaw's order until the current application was determined. The fact is, as the father accepts, that the immunisation had taken place by the time McFarlane LJ made his order. The consequence is that there is no longer, so far as this court is concerned, any live issue in relation to that matter. The father complains that he was delayed in making his application for a stay by delay in the Plymouth County Court actually producing a sealed copy of HHJ Robertshaw's order. That may be, and it may be that that explains why his application for a stay was in the event made too late, but the fact remains that the immunisation has taken place, and, in the nature of things, there is nothing this court can do to undo that.
Father complains in his grounds of appeal, and the argument is elaborated in his skeleton argument, that HHJ Robertshaw acted outside her jurisdiction in authorising the immunisation and indeed asserts that in consequence her order is void. He makes the point that immunisation is a medical question, and in his grounds of appeal asked rhetorically: does a circuit judge have jurisdiction over a medical decision such as this? He is concerned if, in what one hopes is a very unlikely event, his daughter suffers any adverse consequences, to know whether he or she have any grounds of claim against somebody and, if so, who and on what basis. The simple fact, as I have explained to the father during the course of his oral submissions, is that a decision as to whether or not a child of this age should or should not be immunised is a matter for the parents. If the parents can agree then their decision is final, whether others might think their decision right or wrong, wise or foolish. If, however, as in the present case, the parents are unable to agree, then, as in relation to every other issue concerning a child in relation to which the parents cannot agree, the matter has to be determined by a judge. And the fact that the issue in dispute relates to medical treatment rather than contact or residence or some other matter does not in any way diminish the jurisdiction and indeed the responsibility of the judge to take a decision. There is clear authority that the court has such jurisdiction, and it will be found in a decision of Sumner J in the Family Division affirmed by the Court of Appeal in Re C (Welfare of Child: Immunisation) [2003] EWHC 1376 (Fam), [2003] 2 FLR 1054, [2003] EWCA Civ 1148, [2003] 2 FLR 1095.
So the father's complaint that HHJ Robertshaw acted without jurisdiction is, as a matter of law, in my judgment groundless. The question would then become whether her judgment could be challenged upon one or other of the usual grounds, namely that she acted with inadequate evidence or that her judgment was plainly wrong. However, those matters, for the reasons I have already indicated, are now completely academic. So far as concerns the doctor, or the nurse acting under the doctor's authority, who actually administered the immunisation, the paragraph in HHJ Robertshaw's order which I have already quoted would, as it seems to me, provide them with a complete defence against any claim, whether criminal or civil, for administering the immunisation. The appropriate form of order adopted, as we have seen by HHJ Robertshaw in the present case, is to authorise the third party, in this case the doctor, to act on the authority of the one parent, whether or not the other parent agrees. That is the recognised mechanism adopted in a case of this sort and that has the effect of immunising the third party doctor from any basis of complaint.
Accordingly, so far as concerns the major part of the father's complaint today, for those reasons I must, as I do, refuse permission to appeal.
I move on to the question of contact. It is apparent not merely from the fact that these proceedings have, as I say, been somewhat protracted and acrimonious, but also from a comparison of the decision made by HHJ Tyzack in April 2002, the decision made by District Judge Moon on 11 June 2012, and HHJ Robertshaw on 29 August 2012, that the question of contact has been considered by a number of different judges on a number of different occasions. HHJ Tyzack, of whose judgment I have a note, appears to have taken the view, as...
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