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Although there always seems to be some story about medical issues or a health related scare story in the news, it is not too often that it overlaps with family law. So we were interested to read about a recent case in the High Court where two children were ordered to be given the MMR (Measles, Mumps and Rubella) vaccine. You can read the judgment here.

The children in this case are both girls, aged 15 and 11. Their parents had been married, and during the marriage they had agreed, following the well-publicised doubts about the vaccine’s safety, and its supposed links to autism, that the older girl would not receive her MMR booster and the younger would not be vaccinated at all. The net effect was that neither girl was fully immunised against the three diseases. The parents subsequently separated. In the light of the recent measles outbreak, the girls’ father wanted them vaccinated. The mother, and the girls, objected. The mother’s objections were based on her perception of the side- effects of the vaccine. The father made an application to court for an order that they should receive the vaccination.

It may seem an odd thing to do, asking the court to make such an order, but under the provisions of the Children Act 1989, application can be made for what are termed “specific issue orders” as well as the more familiar orders for contact and residence. Specific issue orders cover just this sort of problem. They are used to resolve disputes between parents (or other holders of parental responsibility) about medical, educational, or religious decisions. They are often used if there is a dispute about which school a child should attend, or if the parents have different religious beliefs, how the children should be exposed to those divergent traditions.

A further complicating factor in this particular case was the ages of the girls. When children are sufficiently mature to understand the court process and the impact of decisions, they are considered to have sufficient legal competency for their views to be taken into account. This does not mean a court will give effect to the views of the child, but it will generally listen carefully to them. As a very rough rule of thumb, most children around the age of 12 are considered to be mature enough to have their opinions heard. As we mentioned, the girls in this case are 11 and 15.

The girls did not wish to be vaccinated. The older child objected on the basis that she is a vegan and the vaccination contains animal based ingredients. In order to hear the children’s views without making them go through the trauma of giving evidence in court in a dispute between their parents, the children’s views were sought by a Cafcass officer (a court-appointed welfare officer). This is usual practice and allows the judge to hear the views of the children, as expressed to an independent third party.

What became clear from the girls discussions with the Cafcass officer was that their objections were not based on a full understanding of the pros and cons of the immunisation, rather that they had become fixated on the issue of it containing an animal product. When the Cafcass officer asked them what would happen if they became ill with measles, mumps or rubella and needed medicine, they clearly had not thought about whether that medicine might contain an animal product and they had no objections to taking medicine to make them better. As their understanding was not considered to be fully rounded, their views were not adhered to, and the judge considered that it would be in their best interests to be protected from the diseases.

So the Judge ordered that the girls should receive the vaccine. She said “in reaching this decision I am aware this is against the girls’ wishes, but that it not the only factor. It is of course an important factor, particularly bearing in mind their ages but the court also has to consider their level of understanding of the issues involved and what factors have influenced their views. In this case I do not consider there is a balanced level of understanding by them of the issues involved, the focus has been on the negative aspects in a somewhat unfocussed way. The medical advice is for children to receive the vaccine even though it is accepted there are risks of side effects of the vaccine. The health risk of getting any of the diseases the vaccine prevents is clear. They are serious diseases that could have long term health consequences.”

Interestingly in two earlier cases, both concerning the MMR vaccine, the courts had ordered the children concerned receive the immunisation. In 2003 a mother was ordered to have her child immunised against measles, mumps and rubella after the court ruled the benefits of vaccination outweighed the risks, and in 2011, children in care were ordered to have the MMR jab against the wishes of their parents. So it seems there is judicial support for sensible preventative healthcare, especially now that the report linking the MMR vaccine with autism has been retracted and discredited.

If you have any concerns arising from similar issues which you may be facing, do please free to give Adam, Sue, Gail or Simon a call on 01223 443333.


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