Re C (Welfare of Child: Immunisation)
| Jurisdiction | England & Wales |
| Judge | SIR ANTHONY EVANS |
| Judgment Date | 30 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1148 |
| Docket Number | B1/2003/1431 B1/2003/1432 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2003 |
[2003] EWCA Civ 1148
Lord Justice Thorpelord Justice Sedley and
Sir Anthony Evans
B1/2003/1431 B1/2003/1432
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICEFAMILY DIVISION
(MR JUSTICE SUMNER)
Royal Courts of Justice
Strand,
London WC2A 2LL
ELIZABETH GUMBEL QC, ALAN PAYNE and LUCINDA DAVIS (instructed by Messrs Andrew and Andrew of Portsmouth PO2 8AL [1431] and Messrs Battens of Yeovil BA20 1EP [1432]) appeared for the appellant mothers. JONATHAN COHEN QC and KATE BRANIGAN (instructed by Messrs Larcomes LLP of Portsmouth PO2 9DN [1431] and Messrs Lester Aldridge of Bournemouth BH8 8EX [1432]) appeared for the respondent fathers.
THORPE LJ:
In spring 2002 two cases emerged with significant similarities. In each case the father was asking for a specific issue order under section 8 of the Children Act 1989 for immunisation of the only child of the family. In both cases the mother was radically opposed to immunisation. In both cases the parents were unmarried and had hardly if at all cohabited during the lifetime of the child. In each case the child was a girl. In each case the mother was the primary carer. In each case the father had parental responsibility and contact, the level of which was set by the court. Of course there were many differences, one being in the ages of the children (one then three, the other then nine).
Accordingly on 7 March 2002 Holman J consolidated the two cases for the purposes of determining the specific issue orders and set up a hearing in the Family Division of the High Court. He directed that the children should be represented by CAFCASS Legal.
The trial came before Sumner J. It proved to be an extensive task. He sat for five days in July 2002, a further five days in December 2002 and finally for two days in February 200By March 2003 he had made his draft judgment available to the parties. He held a further hearing on 2 May to hear submissions on the draft judgment and on consequential issues. In its final form his judgment was dated 13 June 200In brief he ordered each mother to take her child for immunisation in accordance with a schedule of appointments attached to the order. He refused the mothers' applications for permission to appeal.
On 8 July the applications to this court for permission were ordered to be heard on notice with appeal to follow on 24 July. At the outset of that hearing we granted permission and heard the oral submissions of Miss Elizabeth Gumbel QC for the mothers and Mr Jonathan Cohen QC for the fathers. Since CAFCASS Legal adopted the submissions advanced by Mr Cohen in his skeleton argument the children were not represented by counsel at the hearing although we had the advantage of a written skeleton argument from Miss Probyn, instructed by CAFCASS Legal.
Miss Gumbel's skeleton argument commences with this sentence:
"This case raises novel issues of public importance."
In my judgment that is a considerable overstatement. The burden of this case fell upon Sumner J. On the issue of immunisation he heard a great deal of expert evidence. Dr Conway, a distinguished consultant paediatrician with a special interest in immunology, was instructed on behalf of the fathers. The judge described him as a clear, careful and impressive witness. He also heard from a no less impressive witness, Professor Kroll, professor of paediatrics and infectious diseases at Imperial College. Professor Kroll was instructed by CAFCASS Legal. Finally he heard from Dr Donegan, a general practitioner and homeopath instructed on behalf of the mothers. By the time the experts came to give evidence Dr Conway and Professor Kroll were in almost complete agreement. The expert dispute lay between them and Dr Donegan. The judge was highly critical of Dr Donegan's expertise. He concluded that she had allowed her deeply held feelings on the subject of immunisation to overrule the duty owed to the court to give objective evidence. In consequence he concluded:
"I lack a reliable opinion which differs from Dr Conway and Professor Kroll."
However I should record that Dr Donegan, in supporting the mothers' objections, had not argued that the MMR vaccination was in any way to be linked with autism, nor had she argued that there was any heightened risk from giving those immunisations as one rather than three separate procedures, nor that the MMR vaccination as used in the United Kingdom contained any element of mercury.
I would also emphasise that the issue the judge was invited to determine was not restricted to the MMR vaccination. Neither child had previously received any form of immunisation and the applicant fathers sought a direction for the full range of immunisation. Accordingly the judge considered separately and in turn immunisation against, Diphtheria, Tetanus, Pertussis, Poliomyelitis, Haemophilias Influenza Type B (Hib), Meningitis C and Tuberculosis in addition to Measles, Mumps and Rubella (MMR).
In reliance on the expert evidence of Dr Conway and Professor Kroll, the judge concluded in relation to each immunisation and in relation to each child that the benefits of the procedure outweighed the risks save that he sided with Professor Kroll rather than Dr Conway in their debate over the desirability of vaccinating the older child against Pertusis and Hib and in view of her age he excluded those vaccinations.
That of course was not the end of the case since the judge's essential task was to determine whether in the case of each child the paramount consideration of welfare required the making of the specific issue order sought. In determining that question the judge had to have regard to all relevant factors and not just the assessment of medical risks and benefits.
In surveying the wider picture the judge considered with great care the impact upon each mother of the order sought and the capacity of each mother to accept the court's conclusion and its subsequent implementation. In relation to one mother the judge had the advantage of a psychiatric report sought at the conclusion of the December hearing and considered at the February hearing. In respect of her the judge's finding was:
"I consider that she will be able to cope with my decision difficult as it will be. I find support in Dr Veasey's report. She will be upset. But my decision will not I find cause an adverse reaction as Dr Veasey says. Nor I am satisfied will it cause an impact into her relationship with C to an extent that runs any significant risks for C."
In respect of the other respondent mother the judge's finding was:
"But I do not consider that if I were to make the declaration sought that it would affect her care of F. She could cope with that and the aftermath as well as she has done with the protracted litigation. She said she could accept my decision."
It is important to emphasise that none of the judge's findings, in relation to the expert evidence, in relation to the mothers' capacity to cope, nor generally, is challenged by Miss Gumbel in her notice of appeal or in her submissions. The ground left open to her is therefore circumscribed. Her essential submission is that the judge misdirected himself in law in applying the wrong test. Miss Gumbel submits that he adopted a two-stage test. First he asked whether immunisation in a medical sense was in the girls' best interests. Having answered that question in the affirmative he then proceeded to ask whether there were sufficient non-medical reasons for rejecting the applications for immunisation orders. Miss Gumbel submitted that this erroneous approach elevated the expert medical issue above its due proportion and at the same time imposed a burden on the mothers to displace what was a strong preliminary conclusion in favour of immunisation. Miss Gumbel submitted that the correct approach was for the judge to refuse to make an order for either child to be vaccinated with any vaccine unless it considered that so to order would be better for the child than to make no order at all. That is I believe a fair summary of Miss Gumbel's essential case on this appeal.
Mr Cohen's fundamental response was that the judgment read as a whole demonstrated that the judge plainly reached his discretionary conclusion on a proper application of the paramount consideration of child welfare. He submitted that the distinction which Miss Gumbel sought to draw was one without a difference.
Before expressing my conclusions on this central question I must set out the legal framework. Section 8 of the Children Act 1989 is the first of the sections dealing with orders with respect to children in family proceedings. Section 8(1), in cataloguing the list of available orders, includes the following:
"'A specific issue order' means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."
Section 2 deals with parental responsibility. Section 2(7) provides:
"Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child."
The apparent freedom of each to act alone is not, however, unfettered. As the President said in the case of Re J [2000] 1 FLR 571 at 577:
"There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental...
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