Child immunisations: who decides?
Matthew Barry looks at how a court may approach the question of immunisation of children where parents disagree on the issue.
The very fact that thousands of people have been queuing in West Wales to get their MMR vaccines shows that thousands of parents made the decision not to have their children vaccinated the ‘first time around’. But what about the situations where parents don’t agree with each other about the issue? Is the child to be immunised, or not?
This is an issue of exercising parental responsibility (“PR”) in relation to a child. Section 2(7) Children Act 1989 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 . . .”
As is so often the case though things are not as simple as they first seem. In fact it seems that when it comes to childhood immunisations, a holder of PR may not act alone in the face of opposition from others with whom they share PR. In Re J [2000] 1 FLR 571 at 577 (a case relating to circumcision), Butler-Sloss P. confirmed that the apparent freedom of each person with parental responsibility is not unfettered:
“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 . . . Such a decision ought not to be made without the specific approval of the court.”
In Re B (Child) [2003] EWCA Civ 1148 Thorpe LJ (a private law case before the Court of Appeal concerning whether or not the subject child should be immunised in the face of opposition from the Mother) held (at paragraph 17) that:
“hotly contested issues of immunisation are to be added to that ‘small group of important decisions’”.
It is therefore for those who would wish for the immunisations to take place to issue an application for a Specific Issue Order pursuant to section 8 of the Children Act 1989 (it may be that in appropriate circumstances the parent wishing to prevent the immunisations would apply for a Prohibited Steps Order, although the former is probably more likely).
In care proceedings where, thanks to section 9 of the Children Act 1989 Specific Issue applications (or prohibited steps orders) are not permitted, the only remaining outlet would be for an application to invoke the inherent jurisdiction of the High Court. The Re B case was at first instance heard by Sumner J (sub nom Re C & F (Children) [2003] EWHC 1376 (Fam)), who in his judgment undertakes a detailed and comprehensive analysis of the competing scientific arguments. The Court of Appeal, in considering (and approving) Sumner J’s decision, said that the judgment is recommended reading for parents and those making these decisions (Re B at para. 39). It is certainly a prerequisite for anyone dealing with one of these cases and a real tour de force in terms of its detail and approach.
However, Sumner J was clear (para 358) that:
“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”.
Indeed, Sumner J did not order all the immunisations suggested to be administered. Given the age of child F (10 years old at the time of the judgment), he did not order her to have either the whooping cough vaccination or the “Hib” vaccination, and set certain conditions on the use of some of the others. The welfare of the individual children will clearly be the paramount consideration for the Court (s1(1) and s1(3) apply).
The decision and views of a devoted and responsible parent should not be disregarded or lightly set aside (see Re Z [1996] 1 FLR 191, per Sir Thomas Bingham MR), and the trespassing of the state on the views of a parent must be viewed in light of the consequences that may flow on that parent and therefore either directly or indirectly on the child.
The State, by legislation, will often override the views of a parent by default, e.g. the mandatory provision of education for a child. All of the immunisations described as “routine” are not subject to such a compulsion and as such are open to the vagaries of open debate. The Court must, and of course will, weigh up the pros and cons of each side of the debate to translate the same into the best interests of the individual children.
There are therefore wider considerations at play than simply the competing medical arguments. However, in today’s climate and with the dicta of Sumner J writ large, it is likely that those seeking to avoid inoculation will need something up their sleeve.
