F v F
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Theis |
| Judgment Date | 05 September 2013 |
| Neutral Citation | [2013] EWHC 2683 (Fam) |
| Court | Family Division |
| Docket Number | Case No: SM13P00038 |
| Date | 05 September 2013 |
[2013] EWHC 2683 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Theis
Case No: SM13P00038
Nick Goodwin (instructed by Crisp & Co) for the Applicant
Peter Mitchell (instructed by Ashfords LLP) for the Respondent
Hearing date: 31 July 2013
This judgment is being handed down in private on 5 th September 2013. It consists of 9 pages and has been signed and dated by the judge. The judge does not give leave for it to be reported until it has been anonymised by counsel and approved by the judge.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction
This matter concerns an application by Mr F (hereinafter referred to as the father) for a declaration and a specific issue order concerning his daughters L and M, who are now 15 years and 11 years respectively. He seeks an order that they both receive the MMR vaccination. This is opposed by their mother, Mrs F (hereinafter referred to as the mother).
Background
The parents were married in 1996, the marriage broke down in 2009 and they separated in January 2011. L and M remain living with their mother but have contact with their father on alternate weekends, half the school holidays and occasional weekdays. Agreement regarding financial matters was reached in December 2012 and the decree absolute made in January 2013.
L was inoculated, by agreement between the parents, soon after her birth. In 1998 there was great public debate about the MMR vaccine. Much of the controversy surrounded the research paper, published in the Lancet, by Dr Andrew Wakefield which cast doubt on the vaccine's safety and the risks said to be attached to administering it, particularly in relation to the possibility of autism. As a consequence of this the parties decided, in consultation with their GP, that L should not receive her booster and M has had no vaccinations at all.
The father now states he was a reluctant participant in the joint decision not to inoculate. He says he has become increasingly concerned that the girls have not been immunised and were not protected. Dr Wakefield's research paper was later discredited. The Lancet subsequently retracted Dr Wakefield's paper and his research was not approved by the General Medical Council. The NHS, General Medical Council, Chief Medical Officer and the World Health Organisation all recommend that children should have this vaccine. He is concerned that the consequences of contracting measles, mumps and rubella are serious. He states the need for the children to have protection has been brought into sharper focus following the recent outbreak of measles in Wales.
On 25 January 2013 the father's solicitors wrote to the mother seeking her agreement to the girls being vaccinated, failing which it was indicated he would apply to the court. That agreement was not forthcoming and the father issued this application on 5 April 2013. Following initial directions by the District Judge the matter was listed before me on 25 April 2013. I made directions, including the filing of a CAFCASS report setting out L and M's wishes and feelings. I made further directions on 6 June 2013 listing the matter for hearing on 31 July 2013 and making directions for L and M to discuss this issue with their GP, which took place on 16 July 2013. They came and met me on 25 July 2013 together with Ms Vivian. Ms Vivian filed an addendum report on 26 July 2013, together with a note of our meeting. Both parties have filed updating statements.
The meeting I had with L and M was to enable me to explain my role, the process by which decisions are made and that the decision in circumstances such as this is my responsibility. L and M are charming, intelligent, articulate and thoughtful. The questions they asked me were perceptive and well targeted. They both wanted to understand what would happen.
The matter was listed for hearing before me on 31 July 2013. In addition to the written material I have, which includes two statements from each parent, I heard the oral evidence from both parents and Ms Vivian. At the conclusion of the hearing I reserved judgment as this not only gave me an opportunity to consider the matter but, in addition, the parents agreed that it was preferable for there to be a delay in the decision to enable both parents to enjoy their respective summer holidays with L and M.
Legal framework
There is no dispute between the parties as to the legal framework for the court. The paramount consideration of the court is L and M's welfare. In considering their welfare the court is guided by the matters set out in the welfare checklist in s 1 (3) Children Act 1989.
This issue has come before the court on two occasions before. In Re C (Welfare of Children: Immunisation) [2003] 2 FLR 1095 the Court of Appeal dismissed the mother's appeal against the decision of Sumner J to order her to have her child immunised with the MMR vaccine. This issue was between two parents. Sumner J heard from a number of experts in paediatric immunology and infectious diseases and he concluded that the benefits of having the vaccinations outweighed the risks. He made it clear that each case was fact specific. In the Court of Appeal Thorpe LJ rejected the 'repeated categorisation of the course of immunisation as non-essential invasive treatment. It is more correctly categorised as preventative healthcare.' (para 22). In LCC v A, B, C and D [2011] EWHC 4033 I considered the issue of vaccinations in the context of children who were the subject of final care orders, where there was a dispute between the local authority and the parents as to whether the children should be vaccinated. I concluded the children in that case should be vaccinated. The expert in that case, Dr Ward, comprehensively addressed the link between the MMR vaccine and autism and the consequences of getting these diseases. I set those out at paragraph 16 of that judgment:
'a. Measles, mumps and rubella are serious infections, each of which carried an appreciable risk of dangerous complications in healthy individuals. Vaccination is the only practical way to prevent an individual from contracting infection, and all the evidence is that it is effective and has a very low level of side effects, which are generally mild and transient……..
d. With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child's interest to be protected against measles, mumps and rubella with the MMR vaccine'
The evidence
The mother's opposition to L and M receiving these vaccinations can be summarised as follows:
(1) She questions the benefits of the vaccine and remains concerned about any possible side effects;
(2) She questions the father's change in position bearing in mind what she considered was the parties agreement that the girls should not be vaccinated;
(3) She is concerned about the impact of the vaccination being undertaken against the girls wishes, in particular L who has had psychological problems including anxiety issues which she has received counselling for.
(4) L is a vegan and part of her objection is based on the content of the vaccine which includes animal based ingredients (e.g. gelatine).
In her oral evidence the mother stated the decision not to vaccinate the children was a joint decision taken by both parents following their experience of L's first vaccinations; she considered it was their joint view that they don't always work and there may be side effects. She denied any influence on the children's views. Until this recent application she said both girls had been brought up in a family where there was a consensus between the parents regarding vaccinations. When asked about what her opposition was to the vaccinations she said 'Parents have a choice to do what they feel in their hearts they really believe. I feel both children have grown up in a frame of mind which they were settled in and supported in the same outlook and are now forced to take a different view without more positive reassurance and help given and the recording of ingredients [of the vaccine] is unsatisfactory. They have a right to be informed.' In relation to the suggestion by the father that the girls need to be protected from the risk of getting either measles, mumps or rubella she said from the NHS guidelines the risk of complications from these diseases is higher if the immune system is compromised in some way; L and M are healthy active children which she considers lowers the risk. If the father's application was granted she said she would feel she had 'not been able to put their [the children's] views across enough'. In cross examination she said she 'had no view' on whether the MMR vaccination was effective as she was not trained in reading statistics. In relation to any health benefits of the vaccination being given she said 'I have my doubts, led me and Mr F to come to the decision [not to have the vaccinations]..we both had doubts and these outweighed our perceived benefits.' When pressed about the health benefits to the girls having the vaccination she considered the children have to have a say. She accepted the girls would have seen her distressed by the father's behaviour and this application, which she described as 'bullish'. She considers the girls will feel they have let her down if the application is granted. She said that is because 'they...
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