MMR vaccination and the welfare of children by John Bolch

Family|Family Law|News|October 14th 2013

The case of F v F, in which the court was asked to decide whether two children should receive the MMR vaccination, hit the headlines over the weekend. The case, decided in September, has given rise to some strong feelings but, as a matter of law, it boils down to a simple application of the welfare test – i.e. the principle that the welfare of the child is the first and paramount consideration.

The case concerned a couple who married in 1996. There were two children of the family, now aged 15 and 11. The parents separated in January 2011 and were divorced in January 2013. The children live with the mother, and the father has regular contact.

The older child, called ‘L’ in the judgement, was inoculated, by agreement between the parents, soon after her birth. However, in 1998 the controversy over the MMR vaccine and its possible safety risks erupted, as a result of which the parents agreed not to give L her booster shot and not to vaccinate the younger child, ‘M’, at all.

The father now maintains that he was a reluctant participant in the decision not to vaccinate M and says that, now the research suggesting the vaccine was dangerous has been discredited, he wants the children to be protected by the vaccine, particularly in the light of a recent measles outbreak in Wales. The mother was still against vaccination, and the father therefore applied to the court for a declaration and a ‘specific issue order’ that the children both receive the vaccination. Specific issue orders are made to resolve particular areas of disagreement in relation to children.

The case was heard by Mrs Justice Theis in the High Court.

The first point to note is that neither party took up the opportunity to cite medical evidence, either in favour of or against vaccination. The reason, as stated by Mrs Justice Theis, was simply that all of the medical evidence was in favour of vaccination: the NHS, the General Medical Council, the Chief Medical Officer and the World Health Organisation all recommend that children should have the vaccine.

In reaching her decision Mrs Justice Theis applied the welfare test and had regard to the factors set out in the welfare checklist in s.1(3) of the Children Act. Pointing out that each case was individual and that she was only concerned with the welfare needs of the particular children in the case, rather than how this issue should be decided in other situations, the judge concluded that it was in the interests of L and M that they receive the vaccine. She gave the following reasons for her decision:

1. She was aware that the children had both expressed the wish that they shouldn’t have the vaccination, but considered that their views had been influenced by the views of the mother and other factors, and this affected the weight that should be given to their views.

2. The children were were overly focussed on the ingredients going into the vaccination (L is a vegan), without being able to balance that with other considerations.

3. The consequence for the children emotionally of the court reaching a decision that does not accord with their wishes was a factor to bear in mind, but was not a reason not to make a decision in the children’s interests.

4. The wishes of the children was an important factor, but not the only one.

5. The medical advice was for the children to receive the vaccine.

6. Whilst she had carefully considered the effect on the children of making a decision that does not accord with their wishes and feelings she was “clear that the combination of the secure relationship they have with each parent and the responsibility on these parents to exercise their parental responsibility in the light of the court’s decision will ensure that the consequences of the court’s decision will be managed in a responsible way”.

Mrs Justice Theis ordered that the children have the vaccination before the 11 of October. She concluded:

“I know this issue is felt deeply by the parents and L and M, but now the court has made the decision I have every confidence, that despite their differences, these parents will be able to manage their parental responsibility in such a way that will ensure the strong and secure relationships that exist between each parent and both children will remain in place.”

Unfortunately, it would appear that her confidence may have been misplaced. It has been reported that the children have not had the vaccinations, and that the mother is considering an appeal.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Tulsa Divorce Lawyer Matt Ingham says:

    This is a very tough call. Obviously no matter how safe the vaccination, there are almost always going be extremely rare cases where a recipient of the vaccine suffers very serious side effects.

  2. Luke says:

    Good grief – it is amazing how some divorced parents find a way to fight about everything – can you imagine this going to court if they were still married ?

  3. Andrew says:

    Good result. Foolish mother.

  4. Elizabeth Hart says:

    What was the outcome of this case?

    I’m concerned that those girls will be forced to have the MMR vaccines without the option of an antibody titre test to check if they already have immunity, particularly the older girl who, according to this article in The Independent, was vaccinated as a baby: “High Court rules sisters must have MMR jab against their and their mother’s wishes”:

    The measles/mumps/rubella vaccine is a ‘live’ vaccine. When vaccinated at the right age with an effective vaccine, i.e. after maternally derived antibodies have waned, most children are likely to be immune for life. The reason given for the second dose is that a small proportion of children might not respond to the first vaccine (usually because of interference of maternally derived antibodies, or possibly because of a fault in the vaccine).

    My argument is, it is not ethical to force people to have a second dose of the live MMR vaccine if they’re likely to be immune after the first dose. At the very least they should be offered the opportunity of a blood test (antibody titre test) to verify a response to the first vaccination, even if they have to pay for it themselves. I suggest there is a very important principle at stake here, particularly when the state dictates that healthy people have to have medical interventions, it’s a slippery slope….

    How can these girls give their ‘informed consent’ before the medical intervention of vaccination if the court rules they must have this medical intervention?

    This case has set a dangerous precedent.

    I suggest both those girls should be offered the opportunity of a blood test to measure antibodies (although it would have been better to have had the check soon after initial vaccination). Even the second unvaccinated girl should be offered the opportunity in case she has had natural exposure to the disease.

    Given the controversy about the MMR vaccine in the UK, and elsewhere, I think there could be a lot of fallout about this, there are some parents out there who I suspect would be very angry they weren’t given the opportunity of a blood test for their child, rather than an arbitrary second shot of the MMR live vaccine.

    As detailed on my website, I contacted one of the solicitors involved in this case, but received no reply:

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