In July 2003, a British Court of
Appeals upheld a lower court ruling ordering two mothers to ensure that their daughters
are appropriately vaccinated. The ruling covered two separate
cases brought by fathers who wanted their daughters to be immunized
despite opposition of the girls' unwed mothers. (The girls live
with their mothers, but the fathers share prental responsibility.)
The three-judge appeals panel agreed that the benefits greatly
outweighed the risks.
The father's experts were a consultant
pediatrician with a special interest in immunology and a professor
of pediatrics and infectious diseases. The mother's "expert,"
Jayne Donegan, is a general practitioner who practices homeopathy
and is often used by the British media to represent the anti-vaccination
viewpoint. One of the appeals judges said that the rival expert
opinions had been of "unusually unequal force." Another
judge characterized the antivaccination evidence that the mother
had relied upon as "junk science." Here is the full
text of Justice Sumner's decision.
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 2003. By March 2003 he had made his draft
judgment available to the parties. He held a further hearing
on 1 and 2 May to hear submissions on the draft judgment and
on consequential issues. In its final form his judgment was dated
13 June 2003. In 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 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.
- 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 responsibility, ought not to be carried
out or arranged by one parent carer although she has parental
responsibility under section 2(7) of the Children Act 1989. Such
a decision ought not to be made without the specific approval
of the court. Sterilisation is one example. The change of a child's
surname is another."
- In that case the court held that the circumcision
of the child should only be carried out where the parents agree
or where a court, in settling the dispute between them, decides
that the operation is in the best interests of the child. In
my opinion this appeal demonstrates that hotly contested issues
of immunisation are to be added to that 'small group of important
decisions'.
- Of course where the obligation falls on the court
to decide such an issue the court must apply the child's welfare
as its paramount consideration (Children Act 1989 section 1(1))
and also have regard to the section 1(3) checklist.
- I turn now to the authorities which Miss Gumbel
has cited. The case of Re Z [1996] 1 FLR 191 concerned
a conflict between a mother's desire to further publicise the
life of herself and her child in the face of an injunction in
wardship restraining the media from publishing information which
would lead to the child's identification. The mother's application
for permission to participate in the making of a television programme
was refused by the judge and her appeal dismissed by this court.
In the course of his judgment Sir Thomas Bingham MR analysed
the function of the court in the following passage:
"I understood the mother's counsel to advance two reasons
why discretion could only be properly exercised to the effect
contended for. The first was that the court should never override
the decision of a devoted and responsible parent such as this
mother was found to be. I would for my part accept without reservation
that the decision of a devoted and responsible parent should
be treated with respect. It should certainly not be disregarded
or lightly set aside. But the role of the court is to exercise
an independent and objective judgment. If that judgment is in
accord with that of the devoted and responsible parent, well
and good. If it is not, then it is the duty of the court, after
giving due weight to the view of the devoted and responsible
parent, to give effect to its own judgment. That is what it is
there for. Its judgment may of course be wrong. So may that of
the parent. But once the jurisdiction of the court is invoked
its clear duty is to reach and express the best judgment it can"
- Although that analysis was formulated in a wardship
case, it equally defines the function of the court deciding an
application for a specific issue order advanced by one and resisted
by another, each holding parental responsibility in relation
to the child.
- Miss Gumbel also relied upon a series of cases
including Poel v Poel [1970] 1 WLR 1469, Payne v Payne
[2001] 1 FLR 1052 and Re L [2002] 1 FLR 621 in which the
court has emphasised the importance of the emotional and psychological
well-being of the primary carer to the welfare of the child in
her care. In the field of medical treatment Miss Gumbel strongly
relied upon the decision of this court in Re T [1997]
1 FLR 502 in which this court in allowing an appeal against an
order authorising life-prolonging surgery for a child held that
it was not in the best interests of the child to order surgery
with which the mother did not agree and the management of which
post-operatively she might not be able to support. However the
outcome of that appeal, denying a child life-prolonging surgery,
is unique in our jurisprudence and is explained by the trial
judge's erroneous focus on the reasonableness of the mother's
rejection of medical opinion thus excluding other relevant factors
including the risks and consequences of the surgery, the mother's
crucial role in the aftermath of surgery and the practical consideration
that the judge's order would have required both parents, alternatively
the mother alone, to return to this jurisdiction from a distant
commonwealth country probably for the long period that the surgery
and its aftermath would require. However in the course of her
judgment Butler-Sloss LJ robustly rejected the submission that
the court should not interfere with the reasonable decision of
a parent. She said at 509:
"(Counsel's) suggestion that the decision of this mother
came within that band of reasonable decisions within which a
court would not interfere would import into this jurisdiction
the test applied in adoption to the refusal of a parent to consent
to adoption. It is wholly inapposite to the welfare test and
is incompatible with the decision in Re Z."
- From the decision of this
court in Re J Miss Gumbel sought to extract the proposition
that the court will not order non-essential invasive medical
treatment in the face of rooted opposition from the child's primary
carer. I unhesitatingly reject that submission. The judgments
in the case of Re J expressly emphasise that the case
turned on its particular facts and that no general guidance was
to be drawn from it. In any event I reject Miss Gumbel's repeated
categorisation of the course of immunisation as non-essential
invasive treatment. It is more correctly categorised as preventative
health care. Mr Cohen in his response drew attention to the United
Nations Convention of the Rights of the Child emphasising Article
6(2): 'States Parties shall ensure to the maximum extent possible
the survival and development of the child'. More specifically
he drew attention to Article 24:
"1. States Parties recognise the right of the child to
the enjoyment of the highest attainable standard of health and
to facilities for the treatment of illness and rehabilitation
of health. States Parties shall strive to ensure that no child
is deprived of his or her right of access to such health care
services. 2. States Parties shall pursue full implementation
of this right and, in particular, shall take appropriate measures:
(f) To develop preventive health care, "
- In the end I do not find any of the authorities
cited by Miss Gumbel directly in point. Nor is direct authority
necessary once the present case is seen not as some significant
novelty requiring guidance from this court but as a standard
section 8 application which has attracted a great deal of publicity
and public interest simply because the specific issue in dispute
is both topical and contentious in the wider society to which
we all belong. But that wider dimension must not distort the
forensic processes leading to the determination of whether the
application should be granted or refused.
- Against that background I turn to Miss Gumbel's
primary point, namely that the judge arrived at the wrong conclusion
by adopting the wrong test. The submission is in my judgment
without the least foundation. Most parental disputes that end
in the determination of a specific issue order do not involve
expert evidence. Each parent explains why the grant of the application
or its refusal will more surely advance the welfare of the child.
The judge then decides, exercising a broad discretion that must
reflect all the factors relevant to the welfare consideration.
However in some cases the applicant for the order must call expert
evidence in order to establish the proposition that the order
sought would further the welfare of the child. The most obvious
example is where the application is for an order for medical
treatment. But the issue may be as to the future education or
religious upbringing of the child. In those cases expert evidence
may be relevant. Equally if the issue is as to the name by which
the child should be known expert evidence may exceptionally be
necessary. Relatively recently in this court the determination
of an appeal depended on additional evidence as to the customary
naming of children in the immigrant community to which the parties
belonged. In all these cases where the outcome of the application
is dependent upon the judge's resolution of divergent expert
opinion the judge's assessment of the expert evidence is likely
to be crucial to the outcome. If the judge chooses to make his
assessment of and findings on the expert evidence before coming
to consider other relevant factors he is not to be criticised.
His function is to consider all relevant factors and the order
in which he takes them is surely for him provided that he keeps
each in its proper proportion and ultimately conducts a comprehensive
survey attaching to each relevant factor the weight that he deems
it deserves. In the present case I conclude that it was not only
permissible but sensible of Sumner J to have first addressed
the conflict of expert evidence. He concluded that the rival
opinions were of unusually unequal force. Given that the strong
opinion was that the immunisations were medically indicated the
judge had to embark on the wider review of all other relevant
considerations in order to judge the weight of all the pros (including
the medical indication) as against all the cons. But if the forceful
expert opinion had been that immunisation was contra-indicated
then in this case, and in almost all other conceivable cases,
it would have been unnecessary for him to entertain the application
further.
- Beyond that I would wish to record that Sumner
J's judgment is manifestly conscientious and comprehensive. Having
reviewed and determined the dispute between the expert witnesses
he painstakingly considered immunisation against each disease
distinctly in relation to each child. He then considered each
case separately reviewing the evidence of the parents and the
guardian ad litem (and in that case the evidence of Dr Veasey)
before expressing his conclusions on that evidence. He reviewed
the law and the submissions of counsel. In his review of the
law between paragraphs 310-317 he directed himself on the application
of section 1 of the Children Act 1989 to the cases before him.
Finally between paragraphs 333-360 he recorded his decision upon
each application. In paragraphs 358 and 359 he sensibly emphasised
the ambit of his decision:
"This decision should not be seen as a general approval
of immunisation for children. It does not mean that at another
hearing a different decision might not be reached on the facts
of that case. It does mean that I consider I should make an order
in this case. That is based solely on the evidence I have heard
and the arguments presented to me."
Finally for convenience he summarised over three pages all
that he had expressed at length in the preceding 57 pages.
- That review of the outline of the judgment below
demonstrates that the judge's approach is above criticism. What
is plain is that ultimately these applications were decided by
applying the paramount consideration of the welfare of the two
children concerned.
- Miss Gumbel's subsidiary submissions fare no
better. Professor Kroll had during the course of his evidence
raised the possibility of a middle way, dropping three immunisations
from the programme (Polio, Pertussis and Hib). In paragraph 335
the judge said of that option:
"I would have given such a proposal careful consideration
were I satisfied that reducing the number would be of more than
marginal significance to the mothers. I am not so satisfied."
- Mr Cohen has submitted that the evidence of the
mothers fully justified that conclusion. Miss Probyn in her skeleton
says of Professor Kroll's compromise:
"This was rejected by the mothers and they made it clear
that the compromise was as unattractive to them as the full programme."
- Miss Gumbel was unable to demonstrate that Miss
Probyn's summary of her clients' evidence in relation to Professor
Kroll's compromise was inaccurate. That being the case the judge's
logic in not adopting Professor Kroll's compromise cannot be
faulted.
- Finally Miss Gumbel made some criticism of the
judge's rejection of the submission of the guardian that the
court should defer a decision in respect of the BCG vaccination
for the older child. The judge rejected that option, deciding
on the evidence before him that this was in her best interests.
The decision has the attraction of removing the prospect of further
litigation; it is not now challenged by the guardian and should
stand.
- Accordingly I would grant Miss Gumbel's application
for permission in each case but dismiss the resulting appeals.
SEDLEY LJ:
- I agree.
The Correct Approach
- Miss Gumbel submits that instead of asking himself
a single comprehensive question: "what in all the circumstances
is in each child's best interests?" Mr Justice Sumner took
the medical evidence to create a presumption in favour of vaccination
which it was for the mothers to displace. She submits that such
a two-stage test is erroneous in law because the judge's task
was to strike a proper balance on the totality of the evidence.
But you cannot strike a balance without first quantifying its
elements, and how the judge is to go about this is not prescribed
by law.
- In my judgment, so long as the judge's approach
is sensibly tailored to the evidence and the issues, no question
of law arises about how he or she reaches a conclusion. In other
cases, as Lord Justice Thorpe pointed out in argument, the medical
evidence might so clearly support the carer's opposition that
no other inquiry was needed. Or the medical evidence might be
so finely balanced that the carer's view became central: compare
Re T [1997] FLR 502; Re J [2000] 1 FLR 571. Or,
in a case not directly involving the preservation of life or
health, the carer's irrational but entrenched opposition might
be held so inimical to the child's welfare that no weight of
contrary medical opinion should lead the court to override it.
All the law requires is a logical and practical approach to the
issues and to the evidence.
- Once this point is reached, both appeals run
out of road. Miss Gumbel accepts, as she must, that the judge's
findings on the medical evidence are beyond attack. Conscious
that personal injury litigation about the possible effects of
the MMR vaccine is pending in the High Court, I nevertheless
think it important to highlight what these findings are.
The Scientific Case
- The judge concluded that the medical evidence
relied on by the two mothers to show that vaccination is dangerous
and unnecessary was untenable. Dr Donegan's report was based
on no independent research, and most of the published papers
cited by her in support of her views turned out either to support
the contrary position or at least to give no support to her own.
Not to mince words, the court below was presented with junk science.
- In opposition to this material the judge had
the evidence of two knowledgeable clinical scientists, both respectful
of parental anxieties. They concurred in the conclusion that,
while you can never prove a negative, there was strong scientific
evidence that the risks of not immunising children were real
and in many instances serious: tetanus, meningitis C, mumps,
measles and rubella presenting what Professor Kroll characterised
as 'a plausible risk of severe illness and death'; that the effectiveness
of the vaccines was high; and that their known side-effects were
rare and not life-threatening.
- It is especially worth highlighting why autism
was not an issue in this case: not even Dr Donegan suggested
that there was a scientific case for linking it to the MMR vaccine.
I appreciate that outside the confines of the present case there
is an ongoing dispute about autism and the MMR vaccine; but this
much at least deserves to be known.
- Parents and others responsible for the welfare
of children may find it useful to read the clear judgment of
Mr Justice Sumner. It can be found on Lawtel at AC 0105 218 and
on the BAILII website at www.bailii.org/ew/cases/EWHC/Fam/2003/1376.html.
SIR ANTHONY EVANS:
- I agree with both judgments and that permission
should be granted, but the appeals dismissed.