Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020)

Written by Chloe Branton.

The Judgment

This hearing before MacDonald J was part of a wider private law dispute between parents regarding the children (P aged 6 and T aged 4) spending time with their father. A finding of fact hearing had already taken place, with a final hearing listed to commence on 21 December 2020. The original application from the father included a specific issue order, initially on MMR vaccination. This was then amended to vaccination in accordance with the NHS vaccination schedule.

This aspect of the proceedings was allocated to MacDonald J to be decided in advance of the final hearing before a District Judge. Following this, the father (who appeared in person) sought to include both travel vaccinations and those relevant to COVID-19 within his application for a specific issue order. The application of the father was resisted by the mother (who also appeared in person) and was supported by the Children’s Guardian (who was represented by counsel).

At the start of his judgment MacDonald J explained that he would confine his decision to “whether it is in the children’s best interests to receive each of the vaccines that are currently included on NHS vaccination schedule, including the MMR vaccine.” [2] This was despite the widening of the ambit of the application from the father in advance of the hearing. The judge was satisfied that an order regarding travel vaccinations was too speculative given they may or may not be required at a future date.

Interestingly in the current climate, the Judge was not prepared to make a specific issue order regarding vaccination against coronavirus. This is because he was satisfied it would be premature to do so. He emphasised that his “decision to defer reaching a conclusion…. does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine.” [4]Instead, it reflects the early stages reached at present with the COVID-19 vaccination programme and the lack of clarity on the vaccination of children.

MacDonald J made clear that “…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.” [4]

MacDonald J did however make a specific issue order requiring each child to “be given each of the childhood vaccines that are currently specified on the NHS vaccination schedule.” The father was to be responsible for arranging these and ensuring the children received the “scheduled immunisations for the remainder of their childhood.” Any future applications regarding vaccination for travel purposes and/or those relevant to COVID-19 were also to be reserved to MacDonald J in the first instance. [51]

In coming to his decision MacDonald J had the benefit of detailed written statements and oral evidence. What the court did not have before it, however, was a “jointly instructed expert report…with respect to the safety and efficacy of the childhood vaccines currently set out on the NHS vaccination schedule.” [10]

The mother raised the issue of expert evidence only to the extent of her seeking to rely upon her own ‘experts’ in support of her case rather than her seeking permission for a joint expert report. Her statements objecting to the father’s application were based on her own ‘research’ on vaccination. This is detailed at paragraphs 19 to 30 of the judgment.

The mother’s position was that vaccination would be against the children’s article 8 rights. She also sought to distinguish this case from the previous authorities including the decision in Re H (A Child: Parental Responsibility: Vaccination)[2020] EWCA Civ 664.[1] The mother submitted that the case concerned public law proceedings only and that these proceedings should be determined separately from the established case law.

In terms of the issue of expert evidence, the judge decided that was not necessary as: "absent new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application or a well evidenced contraindication specific to that subject child, to allow the instruction of an expert" [11].

MacDonald J’s judgment considers the case law on parental responsibility and the Re H case at paragraphs 37 to 38 before concluding on this issue at paragraph 52.

At paragraph 41 MacDonald also noted that a specific issue order requiring vaccination was also not a breach of the children’s article 8 rights. This was following the test of proportionality in Bank Mellat v HM Treasury (No 2) [2013] 3WLR 179 endorsed in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190[2] at [44].

He concluded that it does remain necessary for the court to make decisions where those with parental responsibility disagree on the issue of vaccination. This is notwithstanding the fact that absent the circumstances set out at paragraph 11 and 45, it would be “very difficult…to foresee a case in which a vaccination approved for use in children… would not be endorsed by the court as being in the child’s best interests…” [52]. He noted that this includes “vaccination against the coronavirus that causes COVID-19” [52]

Overall he was satisfied it was in the children’s best interests to make the specific issue order.  He stated it is clear there is “a frank dispute between parents who each hold parental responsibility… not capable of compromise between them and that…. accordingly requires the court to determine by way of a specific issue order….” [43]

Brief Discussion

This judgment therefore reiterates the observations of the Court of Appeal in Re H regarding the issue of parental responsibility and the determination of the court. Where holders of parental responsibility are in dispute, it does remain necessary for the court to determine the dispute, irrespective of the merit of the opposition without credible scientific evidence to support.

Whilst the judgment relates only to vaccination in accordance with the NHS vaccination schedule MacDonald emphasised throughout the judgment that vaccination against the coronavirus responsible for causing the COVID-19 infection is very likely to be endorsed by the court as in a child’s best interests. His refusal to make an order in this case for vaccination against the coronavirus reflects the early stages of the vaccination programme for adults with no such scheme yet in place for children, rather than any doubt as to the probity or efficacy of that vaccine.

It is noteworthy that MacDonald J went to such lengths to emphasise this point in the judgment, given the current concerns as to skepticism around the ‘COVID-19 vaccines’, and vaccines in general. His attempts to assure readers of the judgment and make it “abundantly clear” that he has no doubt about the vaccine and that it is an issue of (pre)maturity is important. It signals his acknowledgment of the role the legal system can play when addressing wider societal concerns. Further, the judgment itself was handed down remotely owing to the current protocol in place around hearings during the current restrictions due to the COVID-19 pandemic.

[1] https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.html (For a brief summary of this judgment see also: https://www.parklaneplowden.co.uk/news/immunisation).

[2] https://www.bailii.org/ew/cases/EWCA/Civ/2020/190.html