Well, we all knew that the Covid vaccine would end up being litigated in the family Court, but I wasn’t expecting a published judgment on the issue a week after the first jabs were being given.
M v H (Private law : Vaccination) 2020
M v H (Private Law: Vaccination)  EWFC 93 (15 December 2020) (bailii.org)
It seems that there was already litigation about whether two children should or should not have the MMR vaccine, and the Covid vaccine issue just got tacked on to it. Father said they should, mother said they should not.
The mother asserted that she had done six years of ‘extensive research’ into vaccination. However…
- As I have noted, the mother filed and served two detailed statements setting out in clear terms her objection to the father’s application. It is clear that those statements represent, in part, the product of what the mother described in evidence as six years’ worth of extensive “research” into the question of vaccination. In circumstances where the mother readily conceded during cross-examination by Mr Hunt that she had no scientific qualifications beyond school level biology, it was also clear that the mother used the term “research” to describe the process of information gathering online that had provided her with the material which underpinned her arguments against the vaccination of the children.
- The material relied on by the mother in her statements comprised a newspaper article, a document that purported to be the factsheet from an MMR vaccine, a flyer entitled “The Babies Aborted for Vaccines”, a list of papers which, and doctors who maintain that there is a link between the MMR vaccine and autism, a list entitled “Historical Data on Vaccines and Outbreaks” and, as I have mentioned, material from an American paediatrician called Larry Palevsky, who the mother described as “world renowned” but who also appears, from the information contained in the mother’s evidence and the online material she invited me to consider, to be a very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda. In her second statement the mother cited a paper said to demonstrate that refined sugar reduces a child’s immunity for up to five hours, a paper said to demonstrate the health outcomes for unvaccinated children are better than for vaccinated children and a YouTube link to a video from Dr Suzanne Humphries, an American nephrologist. Once again, it is apparent from this material that Dr Humphries is also very vocal advocate against vaccination engaged in advancing a very specific anti-vaccine agenda.
So whilst the mother was massively overqualified, having studied biology at school, to be an opinion writer on Covid 19 for the Daily Telegraph or the Spectator, she was somewhat underqualified to be giving expert evidence in the Court. (To stop being catty for a moment, the Court were very complimentary about the way that she presented her case, the questions she posed and how on top of the detail she was)
The Judge made it clear at the outset that it was premature to make any specific issue order about vaccination for Covid-19, but that this should NOT be taken to be an indication that the Court considered the vaccine unsafe or unwise or not in children’s interests, but that it was at such an early stage of the vaccination programme that it was impossible even to speculate as to when the NHS might begin making the vaccine available to children (and that of course at present, there are three approved vaccines and who knows which particular one might be administered in due course) :-
I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children. As I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child. However, given a degree of uncertainty that remains as to the precise position of children with respect to one or more of the COVID-19 vaccines consequent upon the dispute in this case having arisen at a point very early in the COVID-19 vaccination programme, I am satisfied it would be premature to determine the dispute that has arisen in this case regarding that vaccine.
On the other vaccinations, the Court followed the authorities that are now clear , and helpfully set out and summarised for anyone who may need them.
- In all the circumstances, holding P and T’s best interests as my paramount consideration and having regard to the matters I am required to consider under s. 1(3) of the Children Act 1989, I am satisfied that best interests of both P and T to be vaccinated in accordance with the NHS vaccination schedule. It is now clearly established on the basis of credible, peer reviewed scientific evidence that it is generally in the best interests of otherwise healthy children to be vaccinated with those vaccines recommended for children by Public Health England and set out in the routine immunisation schedule which is found in the Green Book published in 2013 and updated as necessary since. It is equally well established 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. The mother has placed no evidence before the court to gainsay these conclusions in respect of P and T, either by way of a medical contra-indication specific to either child or new, credible evidence regarding the safety and efficacy of the vaccines set out in the NHS schedule of vaccinations. I am satisfied on the evidence before the court that there are no other welfare considerations that are contra-indicative to P and T to receiving those vaccinations having regard to s. 1(3) of the Children Act 1989.
- Having regard to the reasons set out above, I make a specific issue order pursuant to s. 8 of the Children Act 1989 requiring each of the children to be given each of the childhood vaccines that are currently specified on the NHS vaccination schedule with the father to be responsible for arranging the same and ensuring T and P are taken to the GP for scheduled immunisations for the remainder of their childhood. A copy of the order in this regard will be sent to the children’s GP by the solicitor for the children and placed on each of the children’s medical records. I will reserve to myself in the first instance any future applications with respect to vaccinations against the virus responsible for causing COVID-19 and vaccinations for the purposes of travel.
- Finally, whilst the Court of Appeal did not reach a definitive conclusion on the question of whether, in private law proceedings, the question of vaccination should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, the observations of the Court of Appeal in in Re H (A Child: Parental Responsibility: Vaccination) summarised at paragraph  of this judgment, whilst strictly obiter, make it very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child.
I’m sure this isn’t the last we will see of this sort of litigation and this case doesn’t provide a final answer, but it is a very helpful encapsulation of the key issues and the guidance provided by authorities.