This is YET another judgment in the Cestui Cue Vie litigation, this time about vaccinations. And it has made my head hurt.
T (A child), Re  EWHC 220 (Fam) (07 February 2020)
The previous law on vaccinations of children who are in care, where parents object, is “Don’t do it under section 33 of the Children Act 1989, make an application and let the Court decide”
[Section 33 basically allows a Local Authority who hold an Interim Care Order or Care Order, to take actions that they think are necessary to safeguard or promote the welfare of the child. In effect a veto/overule to parental objection]
MacDonald J in Re SL (Permission to vaccinate)  EWHC 125 (Fam):
“33. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order
Vaccination is a hot-button topic, though not QUITE as much as it is in America, but still something that some people hold very strong views on, particularly the MMR vaccine and the theory (well and truly debunked) that it causes autism or can cause autism. Still, it is something that parents often feel very strongly about.
In this case, the LA made such an application
Hayden J says
I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3) CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination
I consider that this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s.33(3) CA.
He considers the application anyway, because he identifies that if the LA had proposed to authorise vaccinations under s33, the parents would have made an application to block it under the inherent jurisdiction.
Why has this made my head hurt? Well, because we now have two High Court Judges, one who says ‘Oh, you HAVE to apply to Court, you can’t do it under s33’ and the second who says ‘you shouldn’t be bothering the Court with this, do it under s33’
So, if a parent in a case says “I don’t want my child to have the MMR” and the child is subject to an ICO or a Care Order, what do you do?
I’m very grateful to Chris Barnes and David Burrows for helping me get this straight. As best as I can tell, Hayden J’s decision that you should do it under s33 and NOT make an application binds Justices, District Judges, Circuit Judges. Court of Appeal or Supreme Court could overturn it. And a High Court Judge should stick with Hayden J’s decision unless persuaded that a key binding or persuasive authority that should have been shown to Hayden J wasn’t.
If I had to guess at what would happen if the issue comes up before MacDonald J again, I imagine that he would agree that he is bound by Hayden J but without a deal of enthusiasm. I’d try to avoid it if possible.
(It is a bit like Referees and the FA Disciplinary Panel – if the Referee sees the scything tackle and gives a yellow card, the video panel can’t give a ban, but if the ref says he didn’t see it then the video panel can ban the naughty player. Here, because Hayden J was taken to all of the relevant authorities, everyone else OUGHT to follow his decision. This arises from Colchester Estates v Carlton Industries 1984)
Where a decision at first instance has itself been considered by a second judge at first instance, I do not regard myself as free to depart from the second decision (unless persuaded that some binding or persuasive authority has been overlooked): Colchester Estates v Carlton Industries  2 All ER 601.
From Futter v Futter and Others 2010 paragraph 3 https://www.bailii.org/ew/cases/EWHC/Ch/2010/449.html
So, the state of play is, vaccines are now authorised under s33, and the Court will only get involved if the parent makes an application under the inherent jurisdiction to prevent it.
Moving away from the big picture, I always find that a Hayden J judgment contains at least one masterful piece of prose, and this doesn’t disappoint. Poor counsel for mum is faced with making an anti-vaxx argument based on research that has clearly not quite stood up to rigorous scrutiny.
- In his position statement, Mr Bailey, on behalf of M, particularises her views, in relation to her other children, in order to establish what he terms to be “the potential impact on T“:
- “(i) X (22) was in pain for many years after receiving the Gardasil vaccination (HPV), and also led to her being hospitalised for a week. No diagnosis was ever made and still suffers pain today. She was also given 5 doses due to a nurse telling us it was perfectly fine to have extra doses. The recommended dose is 3.
(ii) After receiving vaccinations Y’s (11) development was delayed which has led to him having to receive growth hormone replacement. It was ruled out that his condition was genetic and to this day it remains a mystery as to why this has happened.
(iii) U (18), F’s son, was in good health growing up but now has a condition called Russell-Silver syndrome (SRS-a congenital condition). This was diagnosed when he was 8 years old;
(iv) V (16), F’s son, began fitting a week after having the first set of MMR vaccinations. He was subsequently diagnosed with West syndrome (severe epilepsy). V’s IRO has informed the parents that V no longer has this condition and no other diagnoses have been made. Currently, V is in a wheelchair, cannot walk, talk, or do anything for himself. He wears nappies 24/7 and self-harms by punching and biting himself. He is said to have a developmental age of a 6 month-old baby.
(v) Research (undisclosed for the purposes of this Position Statement) indicates that a. some vaccinations contain aborted human foetus matter and b. some vaccines contain other ingredients that the mother objects to.
(vi) If T is to have vaccinations then the mother would want these to be given separately as research (undisclosed for the purpose of this Position Statement) shows that multiple vaccines at the same time shock the system and some children go on to develop autism and other conditions. The mother believes that it is safer for T to be given vaccinations separately.
(vii) T is now 10 months old and is in very good health. Apart from a few colds (in foster care) he has not had any childhood illnesses in spite of not being vaccinated and has a strong immune system. Research (undisclosed for the purposes of this Position Statement) shows that babies and children who have a good healthy balanced diet with the correct nutrition build a healthy immune system and do not need to be injected with viruses and heavy metals.
(viii) The Local Authority once informed M than T had contracted measles, but to date this has never been confirmed. If this was in fact the case then M will say that this shows that T’s immune system naturally fought of the virus and his immune system is strong.”
- Very properly, Mr Bailey highlights, at (v) and (vi) above, that the research said to support these submissions is “undisclosed for the purposes of this position statement.” By this, Mr Bailey was signalling, I think, that he had not seen any such research. In any event, he did not produce any during the course of his oral submissions. Though attractively presented, the submissions are both tenuous and tendentious. They were supported by F, who read from a document which purported to say that some of the vaccinations contained “MRC-5, the genetic code of a human male.” I pressed F on this, as to what it actually meant, and, in particular, I asked him whether this was the point raised on behalf of M to the effect that some vaccinations contained “aborted human foetus.” He agreed that it was.
The representations continued, with mother’s counsel arguing that the LA had just taken a pro-vaccination stance generally, and had not applied thought to whether it was necessary in the case of this individual child
- Mr Bailey argued that the Local Authority had advanced its application by supporting the principle of immunisation generally. That approach would be misconceived. It was deprecated in Re SL (supra); in Re C and F (supra); and in LCC v A and Ors (Minors By Their Children’s Guardian)  EWHC 4033 (Fam). Mr Bailey queried whether Dr Douglas had seen T’s medical records. Whilst the inference of his report was that he had seen the records, it was certainly not explicit. This led Mr Bailey to submit that Dr Douglas and, by implication, the Local Authority itself had not approached the issue with the necessary “individuation.” By this he meant that the merits and demerits of vaccination had been considered theoretically rather than with specific focus on this child.
- With respect to Mr Bailey, this point turns to dust in the face of the adoption medical report, which reveals Dr Douglas, in my judgement, to have a detailed and empathetic understanding of his patient. The report highlights:
- “2. Growth and development. T was born with moderately low birth weight (between 2 and 2.5kg) which is probably due to maternal smoking in early pregnancy. Low birth weight can be associated with poor growth and delayed development although he has shown good catch-up growth since birth and his development is within normal limits at present. However, his growth and development need ongoing monitoring and recognition of any problems such as decreased growth velocity, motor delay or speech and language delay should prompt early referral for assessment
I’m sure that there have been many occasions when I have been striving to make what I hoped was a good point, or at least a point, and the Judge could have retorted that my point has turned to dust. (I can think of a hearing I did last year where Mr Braithwaite of counsel helpfully pointed out that I’d got something wrapped entirely round my neck, but in his usual charming way). I hope that I never have to hear that being said in a judgment.
Is this the end of the Cestui Cue Vie case? Surely not.