BC v EF
| Jurisdiction | England & Wales |
| Judge | Judge Rogers |
| Judgment Date | 05 December 2016 |
| Neutral Citation | [2016] EWFC 69 |
| Court | Family Court |
| Date | 05 December 2016 |
| Docket Number | Case No. GG15P00160 |
[2016] EWFC 69 (Fam)
IN THE FAMILY COURT
sitting in LINCOLN
Lincoln Family Court
360 High Street
Lincoln LN5 7PS
His Honour Judge Mark Rogers
(Sitting as a High Court Judge)
Case No. GG15P00160
(In the matter of M and N)
Ms Kabweru-Namulema appeared on behalf of the Applicant.
The Respondent father appeared in person.
Ms Compton (for MR SLATER and MS MITCHELL) appeared on behalf of the Guardian/children
The mother in this case is BC and the father is EF. The children with whom I am concerned are M, who is aged four, and N, who is two and a half. The history of the matter is clear from many of the documents and statements and other reports which have been filed. Unfortunately, the disputes in this case are longstanding and the proceedings giving rise to these applications have been going on, on any view, rather too long. There are a number of outstanding issues.
The issue immediately before the court is that of immunisation. There are other matters to discuss to which we will move on later this afternoon, but that first question of immunisation has been identified as capable of resolution as a discrete issue and so it was directed in the case management order made by the Family Court sitting in Grimsby before transferring the case to this court.
For the sake of completeness, since it gave rise to some uncertainty at an earlier stage of the proceedings I can confirm that I am dealing with this case at High Court Judge level. For the avoidance of any doubt I communicated with My Lord, Mr Justice Keehan, the Family Division Liaison Judge for this circuit upon the matter having been transferred in from the North Eastern Circuit. Whether or not there was formal authorisation given on that circuit I still am not clear, but Mr Justice Keehan has confirmed that he is content for me to deal with this case under Section 9 arrangements.
The mother and the children have both been represented in these proceedings by counsel. The father has attended throughout and conducted the proceedings in person. I am grateful to all concerned. Ms Kabweru has conducted this hearing, which, if I may say so, is one of great difficulty and sensitivity and with enormous importance for her client, with great skill and tenacity, advocating her client's case fearlessly without ever forgetting her duty to the court.
The background facts as to the functioning of the parties are relatively insignificant in terms of this discrete issue but need a very short brief mention. Both parties have had their difficulties and no definitive findings have as yet been made. The father is alleged to have had difficulties with alcohol and drugs and to have been unsupportive and inconsistent in his family relationships. The mother is said by him to be obsessive, over protective and narrow in her views. Precisely what are the father's qualities and deficits is relatively insignificant to this particular issue, which depends upon my assessment of best interests, save that the mother says that he has made a cynical and tactical change of position simply to distress and undermine her.
The mother's temperament on the other hand is an important factor. Mr Spooner in his report, which I acknowledge has not been tested in cross-examination and was not explored in detail in this hearing, has made some preliminary comments on the mother's temperament, describing it as apparently vaguely obsessional in flavour (at paragraph 90). He discusses in some detail her relationship with conventional medicine (paragraphs 159 and following) and describes her as potentially over-protective and having an over-valued sense of risk (paragraph 184). I place no significant weight on these untested opinions save to comment that they fit exactly with my observations, albeit from a non-psychological expert point of view.
Those preliminary matters give rise to a preliminary issue of fact. It is suggested by the father, as noted by Mr Spooner, that the mother has a suspicion (if that is the right word) of conventional medicinal methods. She denies that, saying that she is perfectly content to adopt conventional medicine if and when the need arises. On this small issue I prefer the father's account. I am sure that that is so. The mother herself has accepted that she tends to look for alternatives and I find the father is accurate, for example, in his description of her even being suspicious about the administration of something like Calpol.
The factual history is, briefly, that M has had some vaccinations. N has had none. The mother says that this, certainly with M, was the subject of agreement. The father says that he deferred to the mother effectively to keep the peace. I think there are elements of truth in both those propositions because the mother at the time, I find, was more proactive in the care arrangements and decision-making. The position is now much more polarised. The mother is fundamentally opposed to vaccination at all for N and anything further for M. The father, on the other hand, wants the vaccinations to be done and in his very short but powerful position statement by way of closing submissions he sets out what he sees as the particular individual and public health advantages of those vaccinations.
I reject the proposition that he is behaving in a purely tactical way. His position is clear. It seems to me, although, of course, I have got no detailed knowledge of the background yet, having not investigated, that he seems a calm, stable and reflective individual, whatever may have been the position in the past, but I am quite sure that his view is put forward conscientiously. The principal sources of evidence for the hearing were the report and addendum of Dr Rajiv Mittal and the mother's own witness statement, which begins at page C1 in the bundle. At paragraph 266 at C42 in the bundle the mother says: "In making this statement I would like to add that I researched for hours and hours most days in preparation for this statement. This was very precious time that took me away from spending time with our children but I feel so strongly that, in writing this statement, I am in fact fighting to help keep their future health and wellbeing safe and healthy".
267: "What I have learned simply is that, yes, vaccines do work some of the time, but there is a definite risk with vaccination. The vaccine manufacturers have cited that vaccines are 'unavoidably unsafe'. There is a very rare risk that either of the children will ever catch one of the diseases listed in this report. Both children are thriving and have strong immune systems which definitely helps in protecting them from diseases. No vaccine is vegan. No Doctor will criticise the actions of a vaccine or he/she will be afraid of losing their job."
268: "It has not been easy reducing this research I have done to the information I have placed in this statement. Having to do so has given me the opportunity to focus even more than previously on the risk/benefit ratio to M and N in having further immunisations. Despite Dr Mittal's recommendations, which were only to be expected, the perceived wisdom is that all children should be vaccinated, I am now even more certain than I was previously that the potential risks to our children are greater than the potential benefits from vaccination. M and N are very healthy children. They are fed only natural products. Their bodies are as free of toxins as I can possibly make them. Neither child is particularly ill these days. They have both recently had chicken pox but were not actually ill with it. They shook it off very quickly."
269: "I fully appreciate and understand that vaccinations are public health measures that aim to reduce, to eliminate the incidence of certain infectious illness in society via the recommended vaccine schedule. There are, however, too many unknowns regarding the long-term side effect of vaccinations. Vaccines contain products that I would not want my children's bodies to accommodate. It is not natural to be injected with metal elements and as a vegan it goes against my beliefs for my children to be injected with something that is grown on animal cells or something that has been tested on animals. I continue to maintain that M's persistent cough, eczema and cradle cap were a reaction to his vaccinations, something with which EF agreed at the time."
Those short paragraphs, albeit appearing at page 43 of her statement, really encapsulate her position. However, to get to that point she has throughout the body of the statement gone to enormous lengths, as she herself recognises, to set out her position. It seems to me that the essence of what she is saying, as well as that conclusion, begins, and I will not read it in full, from paragraph 10 of her statement under the general heading "Vaccinations" and she deals, properly in my judgment, with the chronology as she sees it, and as the statement continues she comes, at paragraph 22, to an important chronology which is reduced from exhibit BC6 into a short list of dates, and that, helpfully over that page and the following two, covers the period of M's first set of vaccinations and follows. That, quite properly, raises for me a question of fact. However, I am sorry to say that between those first four or five pages, which are highly material and relevant, and those concluding remarks, which, as I have indicated, well encapsulate her case, is a volume of material which is simply difficult to digest. I understand how it has come about but I have to say that I deprecate a witness statement in the form filed. It would be unfair on the mother were she to be allowed to believe that a hearing of this sort, as she herself through counsel...
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