B (a child)

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.

I agree.

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 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.

I agree with both judgments and that permission should be granted, but the appeals dismissed.