M v H
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] EWFC 93 |
| Docket Number | Case No: PR19P00271 |
| Court | Family Court |
| Date | 15 December 2020 |
[2020] EWFC 93
IN THE FAMILY COURT
Sitting Remotely
THE HONOURABLE Mr Justice MacDonald
Case No: PR19P00271
The Applicant appeared in person
The First Respondent appeared in person
Mr Richard Hunt (instructed by John Whittle Robinson) for the Second Respondent
Hearing dates: 10 December 2020
Approved Judgment
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.
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...
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To Vaccinate Or Not To Vaccinate ' That Is The Question'
...case law in this area, which the courts adopt for guidance. In the case of M V H (Children represented by their Children's guardian) [2020] EWFC 93, the judgment of the case makes it clear that in instances where parents disagree on vaccinating their children, the court is likely to view [v......