4 December 2013
On 12 October 2013 the Family Division of the High Court published a judgment which had been handed down in private on 5 September 2013 concerning an application from a father for a specific issue order under section 8 of the Children Act 1989 requiring that his 15 year old (L) and 11 year old (M) daughters received the MMR vaccination. Dr Sara Fovargue considers the case and its implications.

Case transcript: F v F [2013] EWHC 2683 (Fam)

The Facts

The parents were married in 1996, the marriage broke down in 2009, they separated in 2011, and the decree absolute was made in January 2013. L and M lived with their mother and had contact with their father on alternate weekends, half of the school holidays, and on occasional weekdays. L was born in 1998 and was, in due course and with the agreement of both parents, vaccinated against MMR but, following the controversy surrounding the MMR vaccine during that year (following a paper published by Dr Andrew Wakefield in The Lancet, which has since been retracted), she did not receive her booster and M has received no vaccinations at all.

In January 2013 the father sought the mother’s agreement to L and M being vaccinated, as he was concerned about the serious consequences of his daughters contracting measles, mumps or rubella with the outbreak of measles in Wales at that time highlighting to him the need to protect them via vaccination. The mother did not agree, and on 5 April the father applied for a specific issue order. The mother opposed the order.

The mother’s view

She questioned the benefits of the MMR vaccination, why the father had changed his mind when they had previously agreed about not vaccinating, and was concerned about side-effects of the vaccine and the impact of L and M being vaccinated against their wishes, especially for L who had had counselling for anxiety issues. A further concern related to L, who is vegan and part of her objection to the vaccine was based on its content – gelatine – a non-human animal based ingredient.

The mother argued that parents have a choice about their beliefs, and L and M had grown up in a family where vaccination was not accepted; she did not know why this should now change. With regards to the risks of not being vaccinated, as Land M are healthy active children they are at lower risk of complications if they did contract measles, mumps or rubella.

L and M’s views should not be overridden without good reason, with particular weight attached to L’s views as a mature child. They will be harmed if their will is overborne, traumatised and their personal autonomy undermined. Their relationship with their father could also suffer, and may feel resentment and confusion at not being listened to.

The father’s view

He was concerned about the focus on the vaccine’s ingredients which distracted from the benefits of it, and about the risks if they contracted measles, mumps or rubella. He accepted that his application could have been made earlier but the mother knew he was unhappy about the matter, and the measles outbreak in Wales had highlighted the risks of contracting the diseases. He respected L’s views as a vegan, but as a minor he still had parental responsibility for her welfare and had to balance risks. The risks of contracting those diseases were greater, and L did not understand the risks of not being vaccinated. He considered M’s views to be influenced by L.

It is in L and M’s interests to be vaccinated, and it is more likely than not that their wishes and feelings have been influenced by their mother. M’s understanding of the vaccine is ‘limited and unbalanced’, while L’s is greater but ‘lacks the balance as to risks and consequences of getting the diseases’ [19].

L and M’s views

These were set out in the CAFCASS reports, following two meetings with L and M, which made clear that they were focusing on the ingredients in the vaccine. L and M had conducted internet research but had not ‘obtained a full and proper picture and [were] fearful of something being put into their body that they have not been able to properly evaluate’ [14].

There were concerns about the emotional impact on L and M of not having balanced information, along with their mother’s anxiety about vaccination. Indeed, L and M had ‘probably been influenced by their mother’s views, and took some responsibility ‘for making her feel okay about that’ [15]. L and M did not think about the implications if they did get ill, and M said that if she became ill with measles, mumps or rubella then she would be treated with medicine, but did not consider the ingredients in that medicine.

The decision

Applying section 1(1) of the Children Act 1989, the welfare principle, and the welfare checklist in section 1(3) of that Act Mrs Justice Theis held it was in L and M’s best interests to receive the MMR vaccination before 11 October 2013. L and M should also meet with a paediatrician with expertise in vaccinations to answer their questions.

The reasoning

(i) L and M’s views were influenced by a number of factors which affected the weight to be attached to their wishes and feelings. First, they were unable to understand why their father had changed his mind from not wanting them to be vaccinated because of the risks and so keeping them safe, to now wanting them to be safe by having the vaccination. Secondly, L and M focused on the ingredients in the vaccine without considering and balancing the wider picture, and the consequences or actions of not having it - including medications they may then require (and their ingredients). Thirdly, it was likely that they were influenced by their mother’s strongly held views.

(ii) The welfare considerations for each child should be considered separately, but the CAFCASS officer did not think that they should be treated differently. While L may have a better understanding and be better informed because she is older, the CAFCASS officer concluded that her views were naïve.

Neither L nor M were able to give a balanced view, and over-focused on the ingredients of the MMR vaccine without balancing other considerations. Indeed, this focus (and, for L, the focus on a particular ingredient), without balancing that aspect with other factors, the lack of contemplation regarding what they would do if they contracted mumps, measles, or rubella and the ingredients contained in any relevant medication, meant that:

  • ‘their views, whilst understandable in the circumstances, lack the ability to step back and consider the advantages and disadvantages of having the vaccination.’ [22]

(iii) The emotional needs of L and M should be considered, they are in the middle of a dispute between their parents, and the emotional consequence of the court reaching a decision with which they do not agree must also be borne in mind. However:

  • ‘it is incumbent on the parents to assist and support the girls with the consequences of [the court’s] decision. It is not a reason not to make that decision, if it is considered in the girls’ interests to do so.’ [22]

(iv) While the decision was against the girls’ wishes this was not the only factor for the court to take into account. It was an important factor, particularly in the light of their ages, but the court:

  • ‘also has to consider their level of understanding of the issues involved and what factors have influenced their views. I do not consider there is a balanced level of understanding between them of the issues involved, the focus has been on the negative aspects in a somewhat unfocussed way.’ [22]

(v) As the parents could not agree on a course of action it was for the court to exercise parental responsibility for the parents, having regard to the welfare principle. The ‘secure relationship’ that each child has with each of her parents and the parents’ responsibility to exercise their parental responsibility following the court’s decision ‘will ensure that the consequences of [that] decision will be managed in a responsible way.’ [22]

Some issues

  1. We do not know but it would be interesting to know how the court framed the order. Was the mother to ‘facilitate’ the MMR injection and so take them to the GP’s surgery? But what if L or M refused to get into the car, or walk to the surgery?
  2. If L and/M struggled or refused to hold out their arms could reasonable force be used?
  3. Would a GP be willing to vaccinate in this situation? Is this ethically acceptable? Professionally responsible?
  4. How does this sit with other best interests decisions?
  5. When can a child exercise her autonomy to make decisions?

Sara Fovargue is a Senior Lecturer in Law at Lancaster. She researches in the areas of health care law and ethics, and family law. She has written widely in the field of health care law and ethics, including Xenotransplantation and risk: regulating a developing biotechnology, and is currently looking at who consents when both the child and her parents are minors (see further, S. Fovargue, (2013) 25 Child and Family Law Quarterly 1-18). She is also a member of the Nuffield Council on Bioethics Working Party on Children and Clinical Research.

You can find out more about Sara’s research at: http://www.lancaster.ac.uk/fass/law/profiles/Sara-Fovargue