BC v EF (No.2) (Parental Responsibility : Immunisation)

This judgment will be entitled BC and EF; in the matter of M and N (No.2). This highly unusual case has taken a further very unexpected turn. The background to the case need not be set out in this judgment because it is fully rehearsed in my judgment of 5 December 2016 which has been transcribed and reported at [2016] EWFC 69 and is available on the publicly accessible website bailii.org. That declaratory judgment gave rise, after a certain amount of to-ing and fro-ing, to the ultimate order that I made which is to be found in the bundle at B1 onwards.

At B3 the two key paragraphs dealing with Child Arrangements and the Specific Issue are set out. The order, so far as immunisation is concerned, reads as follows: ‘It is declared that it is in the interests of the children to receive all age-appropriate vaccinations, inoculations, immunisations, including boosters. In order to give effect to this Declaration the mother must either herself take the children to be vaccinated or allow the father to do so. They must be administered by a medical practitioner. All vaccinations required must be administered by no later than 17 February 2017. In default of agreement between the parents as to the practical arrangements the arrangements will be put in place by the father having consulted with the Guardian’ and then a paragraph essentially defining what I meant by vaccinations, inoculations and immunisations follows.

That order, which obviously had a cut-off date of 17 February, has not in fact been implemented. The key reason is that the father has changed his mind, because the matter only became live and relevant for the Court when in December last there was a dispute between the mother and the father on that important issue, the mother being opposed to vaccination and further vaccinations and the father being in favour of them. He, the father, is not represented and has not been throughout but is an articulate young man and although he did not give oral evidence before me today he reiterated what he has said at other intermediate hearings that his change of heart was genuine, was personal and uninfluenced by the mother, save to the extent that he said to me that he realised the profound effect that my decision had had upon her, greater than he had perhaps anticipated, and, as he put it, that as soon as the decision was made his heart sank and he realised that he had taken the wrong course and so was prepared, as far as he was able, to reverse it and therefore take up an entirely consistent position with the mother.

In parallel with that, their relationship as adults appears to have improved somewhat because the other aspect of the case, namely Child Arrangements, in particular contact, was causing and had historically caused very great difficulties. They have engaged in a form of informal mediation, not organised or recommended by the Court but upon their own initiative, relatively casual in the sense that it is ad hoc and by telephone only but they tell me it has been of support and benefit to them. Similarly contact itself has been arranged and I am told is continuing. There is a significant geographical divide now between the parties, the father having moved, but they are happy to organise contact on a fortnightly basis for what is a relatively short period as dictated by the father’s travel arrangements.

When all this came to light, as it did fairly early in the New Year, some scepticism was felt both by the Guardian and, I have no hesitation in saying, by the Court. It seemed to me a surprising turn of events, in particular the change of heart on behalf of the father, and undoubtedly there was a suspicion that there had been some form of behind the scenes trade-off in terms of his view of vaccination with contact arrangements. But there is no evidence in fact that that is so whatever the suspicions might be and I am reinforced in that view that there is no clear evidence because the Guardian himself has spoken to the father today and, through counsel Mr Slater, does not seek to have the father challenged or cross-examined on that notwithstanding I suspect a certain degree of uneasiness behind this all. The reality is that neither the Guardian nor the Court is in any position to dispute what this separated couple are now saying, which leads then to the applications before the Court.

The first is the ongoing and predicted further discussion of Child Arrangements and in particular contact; that was always coming back for consideration. But in the meantime two further applications have been made; firstly, at B7, an application for enforcement brought by the Guardian to enforce the provisions about immunisation, and although it is wrongly couched in terms of an application to enforce a Child Arrangements Order that technical difficulty is not central to the arguments put forward today although properly has been covered in writing; secondly are the applications – one in relation to each child – at B27 and 35 jointly by the parents for discharge of my substantive order.

They were at the time, I think, both in person so the form is relatively casual but reads as follows: ‘Please see attached Statements of Truth from parents of the children and we are in full agreement to ask the Court to have the specific order of 5 December 2016 discharged. We are both in full agreement to please ask the Court to discharge the Child Arrangements Order aside from the Residence Order whereby both parents are in agreement the children shall reside with the mother. We also ask for the discharge of the Guardian. We are both in full agreement to stop all Court proceedings with immediate effect. We are currently moving forwards positively with mediation and would ask the Court to please respect and honour this positive decision. It is beneficial for our children. The children’s welfare is paramount to us and we are moving forwards positively and we invite the Court to list our application etc etc.’ So there was absolutely nothing between them at that point.

It is necessary to say a few words about procedure although I do not want to spend too long on that. My original order was deeply unsatisfactory as far as the mother was concerned and there was undoubtedly the prospect of an appeal and so the original order stayed implementation for a few days in order that the paperwork would be prepared, but there was in the event because of the change of circumstances no appeal and so the forensic reality is that my judgment stands. Although it is embarrassing to have to review one’s own decision, it seems to me difficult to envisage that there would have been an arguable case to be brought before the Court of Appeal against my decision but that now is academic because the parents seek variation or discharge because of the change of circumstance, namely, the father’s change of position. I accept that that is now the proper application to be made and there is no purpose – nor would there have been – to seek permission of the Court of Appeal to vary the order rather than challenge its underlying merit.

As I said, the Guardian’s application is technically in the wrong form; it relates to Child Arrangements Orders, which of course is not inclusive of the Specific Issue Order which is another species of Section 8 order. Forms and procedural routes are very important in enforcement proceedings particularly if penal sanctions are likely to be involved. However, for reasons that will be apparent, this procedural difficulty is not determinative of these applications. But simply by way of summary there was some discussion importantly of what the routes might be available. One conceivably would be to invoke the provisions under the Family Procedure Rules Part 37. That would be premature because that deals with enforcement by committal, and this is not a case where there is even a penal notice attached to any of the mandatory provisions and so that route would have to be considered first.

In the Family Court Practice 2016 at C14 the procedural guide sets out the process in terms of invoking Court’s jurisdiction for committal and I am referred to the procedural tables one of which is side-headed ‘Who may apply for committal or enforcement?’ and the answer given with the procedural paragraphs cross-referred ‘Person in whose favour the injunctive order was granted or the undertaking was given.’ That of course is not directly in play here for the same reason, namely, it relates to committal or a breach of an undertaking. But it is nevertheless some helpful guidance. It is in the end unnecessary to dwell upon Miss Kabweru-Namulema’s points on procedure although I am essentially persuaded that they are made with merit and particularly, were penal sanctions ultimately to be sought then the correct procedural route would have to be identified.

But I look essentially at the substance which is of more significance of course. The legal reality is that given this change of circumstances there is now a position where both parents who have parental responsibility are agreed as to the appropriate way forward. Given that immunisation is not statutorily compulsory, given that failure to immunise will not threaten life or on the evidence give rise to the likelihood of significant harm, although it still remains objectively in their best interests, the question arises should the Court impose its own will and insist upon proceeding notwithstanding that that would override the now consensus of parental responsibility as shared by the parents?

This strange point arises essentially because of the unusual timing of this case. If all of this had happened outside of proceedings altogether no one realistically would have required the Court to adjudicate at all. If it arose before a Final Hearing and judgment was delivered again in my judgment it would be unlikely that the Court would insist upon resolving what by then had appeared to become a largely academic issue or at least one where both holders of parental responsibility were now in agreement. However, this change occurred post judgment and order but before implementation, a crucial window of opportunity which is likely to be – as here – very short.

The other curiosity of course is that the matter only comes before the Court as a result of the involvement of a Guardian in Private Law proceedings, which is itself unusual. Had there been no such Guardian then it is probable that the Court would not have known. The Guardian himself was appointed under Rule 16.4 principally because of the very grave difficulties potentially over Child Arrangements, in particular contact. He of course participated relatively passively, as is proper, but appropriately on the issue of immunisation and was in favour of it principally because that is the guide that the medical evidence called gave. In my judgment the Guardian is in an invidious position. His focus as a representative of the child, who is of course a party, is undoubtedly wholly welfare-based. He is right conscientiously to continue to advocate what he regards as the advantage of immunisation, and it is proper in those circumstances it seems to me that he should invite the Court to give effect to the order made. But the question arises does he have locus at all, and even if he does, is it within the proper exercise of his powers to seek enforcement or should he merely, as counsel for the mother put it, draw the issue to the Court’s attention in a relatively neutral way?

Axiomatically, normally it is the party obtaining an order in his or her favour who would seek to enforce it if the order is not complied with. As between two parents with parental responsibility that scenario is easily understood. The position where the enforcement is brought by a third party without parental responsibility is far more difficult and notwithstanding the researches of counsel and my own brief enquiries into the matter the point does not appear to be covered by direct authority. It is necessary therefore to look albeit briefly at the Rules.

The Guardian may be appointed in several classes of proceedings, of course most commonly in Public Law proceedings, but in the exceptional cases in Private Law where Rule 16.4 applies. The Court will appoint a Guardian if it is satisfied that the position under Rule 16.2 is in play, and the position is that if a child is made a party to the proceedings then a Guardian’s appointment will follow. It is almost universally the case in Public Law proceedings to have a Guardian; it is rare in Private Law Proceedings. That is because the involvement of the Guardian in such proceedings is regarded as exceptional and limited to that category of most difficult or most exceptional class of case. It is obviously such a case with which we are dealing.

Further guidance is to be found in Chapter 7, still in Part 16 of the Rules. They are essentially administrative but then at Rule 16.2(7) the Powers and Duty of a Children's Guardian are shortly described as follows: ‘The Children's Guardian has the powers and duties set out in the Practice Direction 16A and must exercise those powers and duties in accordance with that Practice Direction.’

When one goes to the Practice Direction and Part 4 there is specifically the reference to the appointment of the Guardian under Rule 16.4. At Rule 7.6 within the Practice Direction the only guidance as to the way in which the Guardian should act apart from the administrative factors is this: ‘It is the duty of a Children's Guardian fairly and competently to conduct proceedings on behalf of the child. The Children's Guardian must have no interest in the proceedings adverse to that of the child and all steps and decisions the Children's Guardian takes in the proceedings must be taken for the benefit of the child.’ That is a profound and helpful summary but does not of course condescend to the detail and to the identification of every potential scenario.

Rule 7.7 in the same Practice Direction also draws into play Part 3 of the Practice Direction, namely, those general duties of the Guardian more often seen in Public Law proceedings. I will not read those but they are of course largely centred on the Guardian’s duties of investigation and advice to the Court. There is as far as I know – and there is nothing further in the Red Book – no further guidance as to those relevant paragraphs.

I do not rule out a Guardian having the locus to enforce an order made even in these unusual circumstances. It seems to me that if a Guardian is to ‘competently conduct proceedings’ then those proceedings are likely to include proceedings to implement an order which has been made. That said, I am sure it would be the instinct of any conscientious Guardian and similarly the view of the Court, that the Guardian would be very loath to do that save in highly unusual circumstances which are unlikely to occur with any degree of frequency. The question is, even if there is such locus – as I suspect there is – should he in this case invoke it?

The matter essentially in my judgment comes back to first principles. We hardly need reminding of, but for the sake of completeness I do, the meaning of parental responsibility pursuant to Section 3 of the Act: ‘In this Act parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’ That is a hugely important statement of the role of a parent in the general complexity of family life. That is both in terms of day to day management and also the extent to which Article 8 rights continue to dominate the exercise of decisions about family life. The Court is constantly urging parents to make their own decisions if possible and to avoid proceedings or the prolonging of proceedings before the Court. They are invited to take alternative routes to resolution of problems either informally or through such things as mediation or arbitration in some cases. But of course the Court has a residual power. But not every decision taken by parents is objectively correct.

But that does not trigger the engagement of the Court automatically. The State normally only becomes involved, whether the State is in the form of the Court or sometimes the Local Authority, if intervention into family life is justified and proportionate. The test in care proceedings as we all know of course is likely to be that there is evidence showing that the child or children is or are suffering or likely to suffer significant harm. The unusual facts and in particular the timing in this case puts the public policy against the parental choice issue into stark relief. In the course of argument a number of analogies and comparisons were discussed: the so-called relocation cases; specific issues, for example, choice of schools, and even the medical treatment cases under the inherent jurisdiction of the High Court reserved to full Judges of the Division, where medical professionals usually end up in conflict with either one or often both birth parents. That last example of course is a stark case of parental responsibility being overridden by a decision taken objectively by the Court if, for example, it prefers the view of the medical professionals in that case. Plainly different considerations apply and in such a case the issues are obviously grave but not necessarily would the gravity difference mean a difference of approach. But in the end I am not satisfied that any of the analogies or comparisons unlocks the difficult question in this case and so I turn to what might be regarded as simple lowest common denominator factors.

The Court of course may make an order about many aspects of a child’s life: where a child is to live; what contact he or she should have with an absent parent or other relative; and it will do so, and the best interest tests will apply. But frequently parents thereafter agree variations informally or even reverse an order or a state of affairs entirely. In those situations more often than not the Court remains entirely unaware that that is so. Even if by one mechanism or another the Court becomes aware, absent an application by one aggrieved party and save where a child’s welfare would be affected – not necessarily to the extent of there being significant harm but in my judgment substantively affected – it is unlikely to impose something upon unwilling parents because that is both, in my judgment, undesirable and impractical. By impractical I am essentially talking of unenforceable.

Dealing with the second of those first, in this case what are the practicalities? Even if all of the procedures were in place correctly, the options seem to me relatively limited. The first, which is relatively grotesque, would be that the Guardian or a representative of CAFCASS would have to take the child him or herself to the clinic for vaccination. When I state it in those stark terms it can be seen as obviously impractical. It would be wholly wrong for a stranger in those circumstances to do it, almost certainly outside the remit of CAFCASS’s responsibilities, and practical questions of follow-ups and boosters and so on would come into play. That simply is not a realistic option.

The second would be for a Court to make a Section 37 direction and/or an Interim Care Order in order to involve a Local Authority. That would in my judgment be a wholly artificial and improper device. In this case the Local Authority in my judgment would not realistically contemplate Public Law orders; Care Orders or Supervision Orders. Quite apart from that of course Section 38 of the Act dealing with interim arrangements is unlikely in my judgment to be satisfied. Section 38(2) is of course well-known: ‘A Court shall not make an Interim Care Order or Interim Supervision Order under this Section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in Section 31(2)’.

The major practical question which could arise is what, if the Local Authority having acquired its decisive parental responsibility under such an order, consulted with the parents and came to the same conclusion, namely, not to vaccinate? That potential conflict, it seems to me, highlights the impropriety of using an Interim Care Order as a tool to enforce the Court’s Private Law judgment. In those circumstances not only because the Threshold would not be crossed for an order but it would be a wholly improper device would that not be an appropriate route of enforcement.

The other and perhaps more obvious option would be to use coercive or in the end penal sanctions against the mother or the father or both in order to ensure compliance. But as I said earlier, that would only occur if orders were made in clear terms which could be backed by a penal notice and ultimately backed up and enforced by the sanction of committal. That would in this case – and I suspect in many – be thought highly undesirable and would sit very uneasily with the Court’s overall duty to promote welfare. In other words, I think all the potential routes are practically fraught with difficulty.

However, in the end my conclusion is more profound because I find it undesirable for me now to insist upon the enforcement of the immunisation orders. I share the Guardian’s view that the matter in principle remains in the best interests of the children for them to be vaccinated, and I am quite sure that he was right to bring the matter back to the Court for further decision. But essentially on public policy grounds and given the now parental consensus which I must accept is genuine I am not proposing to take any steps to order enforcement of that original order. Therefore I dismiss the application brought by the Guardian for enforcement and would do however it was formulated.

Turning then briefly to the joint application by the parents to discharge or vary the specific order itself, it is on one level tempting simply to leave it as it is, effectively as a dormant order. However, Mr Slater’s submission that the Court should make a decision rather than leave an unenforceable order impotent on the books is in the end attractive. Again, public policy reasons, particularly as to the question of confidence in the system and the effectiveness of orders, prevail.

My original Declaratory Judgment stands. The weight of judicial opinion in Public Law and specific issue circumstances is clear and indeed since my judgment my Lord Mr Justice Macdonald in Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam) has delivered a further judgment in a care context reinforcing the weight of judicial view. It remains therefore my view that it is in the best interests of these children to be vaccinated and the reasons are there to be seen in my reported decision which remains in the public domain. But for the reasons that I have outlined I am prepared to allow the application for variation of the order itself so as to remove the requirements as to vaccination; in other words, the determination of the declaratory relief remains, the rest will go. At A3 the first sentence under para. 2: ‘It is declared that it is in the interests of the children for them to receive all age-appropriate vaccinations, inoculations, immunisations including boosters’ stays, and the paragraph of definition at the conclusion of that paragraph will also stay, but the intermediate four sentences which would be the way of giving effect to the order I now discharge and therefore there will be no requirement upon the parents to take steps either together or individually to have the children vaccinated. It remains open to them if they agree with the passage of time and that the vaccinations still remain age-appropriate to take a different view. It is now a matter for their joint exercise of parental responsibility.

I turn finally to the issue of contact, which has somewhat taken the back burner in these proceedings but I am reminded was the impetus for the proceedings themselves and has been a very important factor all the way through. The mother had made some serious allegations against the father and had grave suspicions about his capability to exercise contact properly, but there has been no fact finding hearing – indeed there has been no welfare hearing on the issue of contact – fully to explore these matters. The Court has grappled with interim arrangements from time to time. Now the parents jointly say that through their own efforts, helped by mediation, they have settled into a pattern which suits them and suits the children. They say there is no need for further investigation or indeed any Court determination.

The Guardian says that that is premature and that he is reluctant to agree to close the case altogether. He says that his investigations are incomplete and would like to observe contact, that it is difficult to see how the mother’s very strongly held anxieties have now been assuaged and in particular that the father has not complied with his longstanding commitment to provide professional drug-testing evidence as reassurance.

I am broadly sympathetic with the Guardian’s view over those matters but there does in reality now appear to be agreement freely entered into. Paragraph 1 of my order at B3 dealing with Child Arrangements is in point and helpfully was referred back to. It reads: ‘The arrangements for the children in the form of contact shall be agreed between the parties (they having indicated their willingness to explore mediation) or in default of agreement determined by the Court at a further hearing.’ If those words are to have any meaning at all, says counsel on behalf of the mother, the Court must be consistent because they have explored mediation, they have indeed taken it up and they say it has been valuable, and that they are now in agreement and a pattern of relatively low-level engagement between father and children is underway and they will work on that.

In many respects the same points which were considered in a more profound sense in relation to the immunisation question arise. The Court wishes to empower parents to take their own decisions if possible and that very paragraph anticipated that that would be so. Of course all the decisions have to be taken in the context of Section 1 of the Act and the responsibility of the Court and of any Guardian to ensure so far as possible that the children’s welfares are promoted, and there are very many matters in the checklist that the Guardian says still need investigation not least capabilities, risk of harm and the effect of change. But the truth is that change apparently has been effected. It may be remarkable and for that reason I completely understand the Guardian’s cautious reluctance to conclude the case, but in the end I am persuaded that the Court needs not prolong these proceedings any longer and will not be required to make substantive orders beyond those which are now proffered as consensual. There may be some drafting points as to precisely what should be ordered and what should be recited or undertaken but I am sure that those can be resolved by discussion today, but my overall judgment with in the end no hesitation is that these proceedings should be brought to an end today.

I will direct a transcript of this judgment because I propose – subject again to checking anonymity – for it to be put on bailii.org as the second half of this saga. It will of course be anonymous and the mother need have no worries about her identification.