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LCC v A & Ors [2011] EWHC 4033 (Fam)

Application for declarations pursuant to the High Court’s inherent jurisdiction in respect of immunisation of children in local authority care.

The four children in respect of whom this application was brought had been the subject of care proceedings.  At the conclusion of these (in which findings of long term neglect were made) the court approved separate long term foster placements for the older three children and a plan for an adoptive placement for the youngest child.

Early in the proceedings, the Local Authority had flagged up the issue of immunisations for:

1. boosters for immunisations which the children had received whilst in their parents care,

2. MMR immunisations (booster only for child A) and, again for A only,

3. a seasonal flu immunisation.

The parents opposed the Local Authority and the trial judge directed that the issue should be considered following the conclusion of the care proceedings. Theis J noted that whilst each case would be fact specific, where there was a dispute between the LA and the parents, if there was no pressing medical need for an early determination, it would obviously be more appropriate for issues of this nature to be decided after the final hearing, it being the case that if the children were returned to the parents' care without the LA sharing parental responsibility, there would be no need for the court to determine the issue.

Theis J heard the application on submissions and with full skeleton arguments, despite the absence of the parents, their legal representatives having confirmed they were content to proceed.

Theis J outlined the law (in respect of which there was no dispute) as follows:

-  Once the inherent jurisdiction is invoked, the welfare of the child is paramount.

-  When exercising the "parent's patriae" jurisdiction (whilst not excluding the parents) the responsibility for decisions whether to give or withhold consent is that of the court alone.(Re J (A Minor)(Wardship:Medical Treatment)[1991] 1FLR 366).

- Where there is a dispute between parents and the LA over the exercise of parental responsibility, although the decisions of "devoted" parents should not be disregarded and whilst their consent or refusal is an important consideration, the role of the court (once the inherent jurisdiction is invoked) is to exercise an independent and objective judgment and, in so doing, the court may overrule the decision of a "reasonable parent". (Re Z (A Minor)(Freedom of Publication) [1996] 1FLR 191 and Re T (Wardship:Medical Treatment) [1997] 1FLR 502).

- The court has to carefully consider Article 8 of the ECHR and whether the interference proposed is justified and proportionate.

The parents' objections were based on press and internet reports about risks from swine flu vaccination and purported links between autism and MMR (both parents believing that A developed autism after having had the MMR vaccine). They argued that, had the children not been in LA care, no action would have been taken about their decision not to vaccinate and that the the LA's position was dictated by "policy dogma" rather than the interests of the children.

The consultant paediatrician within the care proceedings had reported not only on the lack of evidence of any link between MMR and autism but on the likely adverse effects on A of the parenting he had received and upon the serious nature of measles, mumps and rubella. With regard to swine flu, her concerns centred on A's vulnerability to infection from contact with other "vulnerable" children at school and in a respite unit.

Having considered the evidence, Theis J concluded that:

- booster immunisations should be given.  The parents had, in fact, started the process and there was no foundation to their objections.

- the information on the seasonal flu jab was not sufficiently clear and further clarification would be sought from the paediatrician, following which, if required, the matter would be determined on the basis of written submissions.

- the MMR protected children against serious illnesses; there was no competent body of evidence linking it to autism and side effects were rare. Article 24 of the UNCRC 1989 enjoined State Parties to strive to ensure the highest standards of access to healthcare (including preventative healthcare). Although the parents' views should be considered, they had to be weighed in the context of their neglect of the children's  health and failure to co operate with health professionals.

The Local Authority had not based its application on policy dogma and (subject to clarification in respect of the flu jab) the vaccinations were a justifiable interference with Article 8(2) and in the welfare interests of the children. The declarations sought should therefore be granted.

Summary by Katy Rensten barrister, Coram Chambers

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Case No: BB09C10164
Neutral Citation Number [2011] EWHC 4033 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BLACKBURN DISTRICT REGISTRY

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26/05/2011

Before:

MRS JUSTICE THEIS DBE
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Between:

LCC Applicant

- and - 

A, B, C & D 1st Respondents
(Minors by their Children's Guardian)

-and-

K 2nd Respondent

-and-

3rd Respondent
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Mr Jonathan Buchan (instructed by Lancashire County Council Solicitors) for the Applicant
Ms Kathryn Korol
(instructed by John Whittle Robinson Solicitors) for the 1st Respondents
Ms Lorraine Cavanagh
(instructed by CT Turner Solicitors) for the 2nd Respondent
Ms Jacqueline Wall
(instructed by Roebucks Solicitors) for the 3rd Respondent    

Hearing dates: 20th May 2011
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Judgment
This judgment is being handed down in private on 26th May 2011. It consists of 8 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Theis DBE :
1.   This matter concerns an application by a local authority ('LA') to invoke the inherent jurisdiction seeking declarations regarding immunisation injections for children who are in their care. Their application is opposed by the parents, but supported by the Children's Guardian.

2.   The immunisations sought by the LA fall into three broad categories:

(i)       Booster immunisations relating to immunisations the children had whilst    in their parents care.

(ii) MMR immunisation (booster only for A)

(iii) Seasonal flu immunisation (A only)

3.   The matter was listed before me on 20th May 2011. Although expected to attend, the parents were not present at the hearing. An email was received by their legal representatives the previous evening informing them that the parents were unable to attend. Attempts to speak to the parents before the start of the hearing were not successful. The parents had each filed a statement and had been sent Dr Wards reports. As the hearing was to be considered on submissions only and full skeleton arguments had been lodged their legal representatives were content for the hearing to proceed. I heard submissions from the parties and reserved judgment.

Background
4.    The children who are the subject of this application are A 13 years, B 9 years, C 6 years and D 5 years. Following final care orders made earlier this year the LA share parental responsibility (pursuant to s 33 Children Act 1989 'CA 1989') with the parents, K and S. The plans for the children, which were approved by the court, involve them being cared for in the long term by the LA. Due to the extent of their respective needs (found to be caused from long term neglect by their parents) the children are placed in separate foster placements. They will remain in their current placements long term, except for D for whom an adoptive placement will be sought.

5.   The care plan for contact was to support and facilitate indirect contact between the children and their parents. The LA did not rule out the possibility of future direct contact. However, the parents moved and the LA has found maintaining contact with them difficult. I hope that the parents will be able to maintain contact with the children as proposed. There is some limited direct sibling contact.

6.   The care proceedings were issued in 2009 when the children were removed from the care of their parents. The grounds for intervention were chronic neglect of the children by both parents. The parents did not consistently engage with the LA, or their own legal teams, during the course of the proceedings. Unusually the court made an interim order pursuant to s 34(4) CA 1989, authorising the LA to refuse contact between the children and their parents. The evidence in the care proceedings demonstrated that the parents had their own difficulties, as described in the reports from a chartered psychologist.

7.   The LA flagged up at an early stage in the proceedings their wish for the children to receive immunisations, which included MMR. In October 2009 the court directed the parents to file a statement setting out their grounds of objection to the proposed immunisations. The mother's statement is dated 23rd June 2010 and the father's 19th January 2010. They both set out their reasons for objecting to immunisations, principally the MMR immunisation. The main basis of their objection was their experience with A. They feel that his autism was caused in whole, or in part, by the MMR injection. As a result, they do not agree to him having a booster MMR or the younger children having the MMR immunisations at all.

8.   Directions were made by the court as to the management of this application by Parker J in June 2010. The effect was to direct the hearing on this aspect to take place after the final hearing, as the parent's were seeking the rehabilitation of the children to their care. There was some debate in the written material before me as to the appropriateness of the court being asked to consider this aspect before a final hearing. Obviously each case will turn on its own facts, but if there is a dispute between the LA and the parents as to this aspect, and there is no pressing medical need for the issue to be determined earlier, it would be more appropriate for the issue to be determined (if still required) after the final hearing. This is obviously because in the event of the children going home and parental responsibility not being shared by the parents with the LA there is no need for the court to determine the issue, unless the parents disagree.

The Law
9.   There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration.

10. The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said 370 respectively "… The court, when exercising the parent's patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone."

11.  In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent's views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191  Sir Thomas Bingham MR said at 217 B-C: "I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect.  It should certainly not be disregarded or lightly set aside.  But the role of the court is to exercise an independent and objective judgment.  If that judgment is in accord with that of the devoted and responsible parent, well and good.  If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment.  That is what it is there for.  Its judgment may of course be wrong.  So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can". In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that "…..it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court's assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent".

12. The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.

The evidence
13. The parent's objections, set out in their statements, centre on their concerns about the proposed vaccinations for MMR and swine flu. It is submitted on their behalf that they are not opposed to vaccinations per se as whilst in their care the children had a number of immunisations and have explained their reasons to medical professionals when they have not wanted the children to have the MMR vaccination. In relation to swine flu the concern relates to the risks from swine flu, as reported in the press and on the internet including any side effects. Regarding the MMR vaccination the concerns focus on the reported link between autism and the MMR vaccination and the reported increase in autism since the MMR vaccination was introduced. Both parents believe A developed autism after having the MMR vaccination due to the changes they saw in his behaviour and development afterwards. The mother relies on the fact that a number of people have chosen not to have their children vaccinated with the MMR vaccine. This was expanded on in the skeleton argument submitted on her behalf by Ms Cavanagh. She sets out the latest figures on vaccine uptake, both nationally and in the Lancashire area. In the region of 12% of the population choose not to have the MMR vaccination for their children as a result, she submits, the parent's position is not unreasonable. She also relies on the fact that if the children had not been in the care of the LA, no action would have been taken regarding the parent's decision not to have the MMR vaccination for their children. She submits that the decision made by the LA is policy dogma rather than what is in the interests of these children. In these circumstances, she submits, significant weight should be given to these parents' reasonable views regarding these immunisations.

14. Within the care proceedings Dr Ward (Consultant Paediatrician) prepared a number of reports. Those reports support the declarations sought by the LA. She was not asked to give evidence.  Dr Ward deals, in particular, with the main objection of the parents, that there is a link between A's autism and the administration of the MMR vaccine. She states:

"The distinction between a biological cause and severe psychosocial deprivation including attachment disorder can be difficult.  A undoubtedly has experienced neglect in terms of inconsistent care, exposure to aggressive and irrational maternal behaviour and a lack of stimulation.  It is very difficult to apportion relative effects of nature versus nurture (biological versus life experiences).  However, in my opinion it is likely that A was biologically vulnerable to autism and that his difficulties were compounded by his early life experiences and lack of stimulation.  This was further compounded by his parents' failure to access early years services and nursery provision.  Even when A was of an age for statutory education his schooling was disrupted by poor attendance (often 40-50%) and even when he attended he was late and this was likely to have an adverse affect upon his cognitive function"

15. The lack of a link between the MMR vaccine and autism is comprehensively addressed by Dr Ward.  She concluded:

a. A paper by the RFH-IBDSG published in the Lancet in 1998 speculated on a possible mechanism by which the immunisation may be linked to autism.  Dr Ward summarised this theory as follows: "MMR vaccine might damage the bowel and as a result chemicals (opoids) which occur naturally in the bowel and would be dealt with without problem by an undamaged bowel might gain access to the brain and affect development.  No proof for this hypothesis has been given and there is evidence against the theory".

b. There is no evidence that live attenuated viruses in measles, mumps and rubella which are present in the MMR vaccine were linked to autism (Tanouse Yet et al Weaning of children with infantile autism Journal of Autism and Developmental Disorders 1989:19(3): 424-434).

c. Research in the UK (Nicoli MMR vaccination and autism 1998 déjà vu – pertussis and brain damage 1974? BMJ 1998 316: 715-6) and Sweden (Gillberg et al Is autism more common now than 10 years ago? British Journal of Psychiatry 1991: 158: 403-9) showed that whatever the trend in the number of autistic children they are not linked to the introduction of MMR.

d. "Epidemiological studies have not demonstrated any relationship between MMR and the increasing incidence of autism in our society……  MMR has been shown to be a safe immunisation which is effective in preventing these serious illnesses in more than 95% of individuals immunised.  The use of second or booster immunisation increases the effectiveness of the immunisation".

e. The World Health Authority has now endorsed that there is no link between the MMR vaccine and autism.

2. When considering the type of infections measles, mumps and rubella are Dr Ward's conclusions mirror those accepted by Sumner J in Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1054 at 1076:

a. Measles, mumps and rubella are serious infections, each of which carry an appreciable risk of dangerous complications in healthy individuals. Vaccination is the only practical way to prevent an individual from contracting infection, and all the evidence is that it is effective and has a very low level of side effects, which are generally mild and transient.

b. Despite the formal impossibility of proving a negative, the accumulating and substantial body of evidence shows no link between MMR vaccination and autism.

c. There is no evidence to support the suggestion that combining measles, mumps and rubella vaccines in a single injection is harmful, or that giving the components separately is safer. On the contrary, the delivery of the vaccine components in stages increases the risk of an unprotected child contracting one or other of the infections it is intended to prevent.

d. With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child's interest to be protected against measles, mumps and rubella with the MMR vaccine.'

16. In relation to the concerns regarding swine flu Dr Ward states that the flu immunisation is made from the strain of flu virus that is expected in the coming winter. Each year this is slightly different so a new immunisation needs to be made each year. In the 2010/2011 seasonal flu immunisation it included immunisation against swine flu as swine flu was expected during the winter months. She set out in her third report the Department of Health advice as to who should be immunised. In relation to A she said as he had spent time in a respite unit and attends a school where there are likely to be vulnerable children she recommends that he should have the seasonal flu immunisation. Ms Cavanagh on behalf of the mother said A had not been cared for in a respite unit other than for a short period after he was received into care. In addition, the fact that he attends a day school with vulnerable children does not appear to fall within any of the categories in the Department of Health guidelines.

Decision
17. I have carefully considered the evidence in the case and the detailed written and oral submissions made to me and have given consideration, in particular, to the understandable views of the parents. I have reached the clear conclusion that on the evidence before me (subject to the matters raised in paragraphs (1) and (2) below) the declarations sought should be granted. I do so for the following reasons:

Booster immunisations
(1) The booster immunisations for the children complete a process that was in fact started by the parents whilst they were in the care of their parents. It is demonstrably in the children's interests that it is completed. The parent's do not dwell on this in their statements and in reality there is no foundation to object. Ms Cavanagh raised an issue regarding the records of C's immunisations that needs to be checked and provision for that is in the draft order.

Seasonal flu immunisation
(2) The position regarding the application for a seasonal flu jab for A is, at the moment, not sufficiently clear on the evidence before the court. After setting out the various groups of people considered to be at enhanced risk under the Department of Health guidelines Dr Ward may not have up to date information regarding A's current placement (for example, he does not spend time at a respite unit and the significance of the term 'vulnerable children' in the context of the guidelines is not clear). As discussed with counsel during the hearing, they are going to agree a further request for clarification on this aspect from Dr Ward. If she still recommends the seasonal flu immunisation I will consider that further evidence and any further written submissions by the parties and determine the matter without the need for a further hearing. Provision has been made for this in the draft order.

MMR
(3) As set out in Dr Ward's report the MMR vaccine protects children against "illnesses that have serious complications which is why it is important that children are vaccinated against them": (i) Measles causes a range of symptoms that can include ear infection, bronchitis, convulsions (fits) and brain damage.  Measles can be fatal. (ii) Mumps used to be the main cause of viral meningitis in children.  It also causes temporary deafness, miscarriage, inflammation of the pancreas and causes pain and swelling of the testicles in men. (iii) Rubella can lead to painful joints, blood disorders and encephalitis.  It damages unborn babies and may cause miscarriage if women catch the disease while pregnant.  Babies born with congenital rubella syndrome may have some degree of deafness, blindness and damage to their heart or brain".

(4) There is no competent body of professional opinion that supports a link between the MMR vaccine and autism.  In particular Dr Wakefield's research has been discredited. 

(5) Article 24 of the United Nations Convention on the Rights of the Child 1989, although not enjoying the force of law, stipulates: "1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.  2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures… (f) To develop preventative health care".

(6) The side effects of the vaccination are rare.

(7) The views of the parents should be carefully considered and retain considerable importance to the balancing exercise.  Nevertheless they should be weighed in the light of an almost complete failure by the parents to co-operate with health professionals and a neglect of the children's health. In respect of the link between autism and the MMR, they rely on discredited research.

(8) Dr Ward's detailed assessment concludes that these children have been bedeviled by chronic health problems and poor parental compliance with professional advice.   In view of this background there is a particular need to ensure that the children receive appropriate preventive healthcare.

(9) This LA do not, on the evidence I have seen, make this application based on policy dogma. The immunisations were first recommended by their medical advisers and have been subject to close scrutiny in relation to each child by Dr Ward in her reports. She has considered and balanced the objections by the parents.

(10) The abovementioned vaccinations are in the welfare interests of the children and are a necessary and justifiable interference with Article 8(2) in order to protect their health.

18. Counsel have submitted a draft order to reflect this decision.