B e f o r e :
|- and -
- and -
P and T
(Children Represented by their Children's Guardian)
The First Respondent appeared in person
Mr Richard Hunt (instructed by John Whittle Robinson) for the Second Respondent
Hearing dates: 10 December 2020
Crown Copyright ©
Mr Justice MacDonald:
"The Mother was informed that if she seeks to rely on expert evidence she needs to make an application in writing before the next hearing and any application will be considered at the next hearing".
The Children's Guardian
"Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph , "in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect." As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree."
" In making that order, like MacDonald J, I make it clear that my judgment is not a commentary on whether immunisation is a good thing or a bad thing generally. I am not saying anything about the merits of vaccination more widely. I do not in any way seek to dictate how this issue should be approached in other situations. I am concerned only to determine what is in B's best welfare interests.
 That said, it is, in my judgment, appropriate to make the point that this is now the sixth occasion when the court has had to determine whether a child should be vaccinated in circumstances where a birth parent objects. On each occasion the court has concluded that the child concerned should receive the recommended vaccine (save that in Re C and F (Children) Sumner J decided that the older child, aged 10, should not have the HIB vaccine, because the danger for her had past, or the Pertussis vaccine, because there was no approved vaccine for a child of her age). With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed."
i) It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated.
ii) Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.
iii) All the evidence presently available supports the Public Health England the advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole.
iv) The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.
v) The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
vi) The clarity regarding the evidence base with respect to MMR and the other vaccinations that are habitually given to children should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child's own circumstances throw up any contra-indications.
vii) Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects.
viii) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child's welfare.
ix) This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of vaccination.
" Further, I, like Moylan LJ, would specifically draw attention to the approach that is to be adopted to an assessment of proportionality as described by Lord Reed JSC in Bank Mellat v HM Treasury (2) as set out in paragraph 33 of Moylan LJ's judgment. All four of the elements in the four part test in Bank Mellat are important and, for completeness, the full test is:
(1) whether the objective of the measure pursued is sufficiently important to justify the limitation of a fundamental right;
(2) whether it is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the objective; and
(4) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
(See Bank Mellat: Lord Sumption at ; and especially on question (3), per Lord Reed at  to  and  to )."
" 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 s 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."