LCC v A & Ors (Minors By Their Children's Guardian)

This matter concerns an application by a local authority (‘LA’) to invoke the inherent jurisdiction seeking declarations regarding immunisation injections for children who are in their care. Their application is opposed by the parents, but supported by the Children’s Guardian.

The immunisations sought by the LA fall into three broad categories:

The matter was listed before me on 20^th May 2011. Although expected to attend, the parents were not present at the hearing. An email was received by their legal representatives the previous evening informing them that the parents were unable to attend. Attempts to speak to the parents before the start of the hearing were not successful. The parents had each filed a statement and had been sent Dr Wards reports. As the hearing was to be considered on submissions only and full skeleton arguments had been lodged their legal representatives were content for the hearing to proceed. I heard submissions from the parties and reserved judgment.

The children who are the subject of this application are A 13 years, B 9 years, C 6 years and D 5 years. Following final care orders made earlier this year the LA share parental responsibility (pursuant to s 33 Children Act 1989 ‘CA 1989’) with the parents, K and S. The plans for the children, which were approved by the court, involve them being cared for in the long term by the LA. Due to the extent of their respective needs (found to be caused from long term neglect by their parents) the children are placed in separate foster placements. They will remain in their current placements long term, except for D for whom an adoptive placement will be sought.

The care plan for contact was to support and facilitate indirect contact between the children and their parents. The LA did not rule out the possibility of future direct contact. However, the parents moved and the LA has found maintaining contact with them difficult. I hope that the parents will be able to maintain contact with the children as proposed. There is some limited direct sibling contact.

The care proceedings were issued in 2009 when the children were removed from the care of their parents. The grounds for intervention were chronic neglect of the children by both parents. The parents did not consistently engage with the LA, or their own legal teams, during the course of the proceedings. Unusually the court made an interim order pursuant to s 34(4) CA 1989, authorising the LA to refuse contact between the children and their parents. The evidence in the care proceedings demonstrated that the parents had their own difficulties, as described in the reports from a chartered psychologist.

The LA flagged up at an early stage in the proceedings their wish for the children to receive immunisations, which included MMR. In October 2009 the court directed the parents to file a statement setting out their grounds of objection to the proposed immunisations. The mother’s statement is dated 23^rd June 2010 and the father’s 19^th January 2010. They both set out their reasons for objecting to immunisations, principally the MMR immunisation. The main basis of their objection was their experience with A. They feel that his autism was caused in whole, or in part, by the MMR injection. As a result, they do not agree to him having a booster MMR or the younger children having the MMR immunisations at all.

Directions were made by the court as to the management of this application by Parker J in June 2010. The effect was to direct the hearing on this aspect to take place after the final hearing, as the parent’s were seeking the rehabilitation of the children to their care. There was some debate in the written material before me as to the appropriateness of the court being asked to consider this aspect before a final hearing. Obviously each case will turn on its own facts, but if there is a dispute between the LA and the parents as to this aspect, and there is no pressing medical need for the issue to be determined earlier, it would be more appropriate for the issue to be determined (if still required) after the final hearing. This is obviously because in the event of the children going home and parental responsibility not being shared by the parents with the LA there is no need for the court to determine the issue, unless the parents disagree.

There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration.

The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said 370 respectively “… The court, when exercising the parent’s patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone.”

In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent’s views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191 Sir Thomas Bingham MR said at 217 B-C: “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”. In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that “…..it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent”.

The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.

The parent’s objections, set out in their statements, centre on their concerns about the proposed vaccinations for MMR and swine flu. It is submitted on their behalf that they are not opposed to vaccinations per se as whilst in their care the children had a number of immunisations and have explained their reasons to medical professionals when they have not wanted the children to have the MMR vaccination. In relation to swine flu the concern relates to the risks from swine flu, as reported in the press and on the internet including any side effects. Regarding the MMR vaccination the concerns focus on the reported link between autism and the MMR vaccination and the reported increase in autism since the MMR vaccination was introduced. Both parents believe A developed autism after having the MMR vaccination due to the changes they saw in his behaviour and development afterwards. The mother relies on the fact that a number of people have chosen not to have their children vaccinated with the MMR vaccine. This was expanded on in the skeleton argument submitted on her behalf by Ms Cavanagh. She sets out the latest figures on vaccine uptake, both nationally and in the Lancashire area. In the region of 12% of the population choose not to have the MMR vaccination for their children as a result, she submits, the parent’s position is not unreasonable. She also relies on the fact that if the children had not been in the care of the LA, no action would have been taken regarding the parent’s decision not to have the MMR vaccination for their children. She submits that the decision made by the LA is policy dogma rather than what is in the interests of these children. In these circumstances, she submits, significant weight should be given to these parents’ reasonable views regarding these immunisations.

Within the care proceedings Dr Ward (Consultant Paediatrician) prepared a number of reports. Those reports support the declarations sought by the LA. She was not asked to give evidence. Dr Ward deals, in particular, with the main objection of the parents, that there is a link between A’s autism and the administration of the MMR vaccine. She states:

“The distinction between a biological cause and severe psychosocial deprivation including attachment disorder can be difficult. A undoubtedly has experienced neglect in terms of inconsistent care, exposure to aggressive and irrational maternal behaviour and a lack of stimulation. It is very difficult to apportion relative effects of nature versus nurture (biological versus life experiences). However, in my opinion it is likely that A was biologically vulnerable to autism and that his difficulties were compounded by his early life experiences and lack of stimulation. This was further compounded by his parents’ failure to access early years services and nursery provision. Even when A was of an age for statutory education his schooling was disrupted by poor attendance (often 40-50%) and even when he attended he was late and this was likely to have an adverse affect upon his cognitive function”

The lack of a link between the MMR vaccine and autism is comprehensively addressed by Dr Ward. She concluded:

In relation to the concerns regarding swine flu Dr Ward states that the flu immunisation is made from the strain of flu virus that is expected in the coming winter. Each year this is slightly different so a new immunisation needs to be made each year. In the 2010/2011 seasonal flu immunisation it included immunisation against swine flu as swine flu was expected during the winter months. She set out in her third report the Department of Health advice as to who should be immunised. In relation to A she said as he had spent time in a respite unit and attends a school where there are likely to be vulnerable children she recommends that he should have the seasonal flu immunisation. Ms Cavanagh on behalf of the mother said A had not been cared for in a respite unit other than for a short period after he was received into care. In addition, the fact that he attends a day school with vulnerable children does not appear to fall within any of the categories in the Department of Health guidelines.

I have carefully considered the evidence in the case and the detailed written and oral submissions made to me and have given consideration, in particular, to the understandable views of the parents. I have reached the clear conclusion that on the evidence before me (subject to the matters raised in paragraphs (1) and (2) below) the declarations sought should be granted. I do so for the following reasons:

Counsel have submitted a draft order to reflect this decision.