B (a child)

Where holders of parental responsibility disagree about immunising a child, the dispute belongs to the small group of important decisions which require either agreement or the court’s approval. The court must determine the issue independently by treating the child’s welfare as paramount and considering every relevant factor. A responsible primary carer’s opposition deserves proper weight, but creates no presumption or threshold which must be overcome.

The judge may assess conflicting expert evidence before considering the remaining welfare factors. The order of analysis is not prescribed, provided the approach is logical and practical, each factor retains its proper proportion, and the ultimate evaluation is comprehensive. An immunisation order remains fact-specific and does not amount to general judicial approval of vaccination.

Two unmarried fathers sought specific issue orders under section 8 of the Children Act 1989 requiring their respective daughters to receive the full programme of childhood immunisations. Each mother was the child’s primary carer and was fundamentally opposed to immunisation. The proceedings were consolidated, and the children were represented through CAFCASS Legal.

After extensive expert and other evidence, Sumner J ordered both mothers to take their children for immunisation: [2003] EWHC 1376 (Fam). The mothers challenged no material factual or expert finding. They contended that the judge had incorrectly treated the medical evidence as creating a presumption in favour of immunisation which they then had to displace.

The central issue was whether the judge had applied the required single, comprehensive welfare evaluation or an erroneous two-stage test.

1. The appeals were dismissed unanimously. Thorpe LJ held that a hotly contested decision about immunisation belongs to the small group of important parental decisions which should not be implemented unilaterally. In the absence of agreement between those holding parental responsibility, the court must decide the issue.

2. The court’s governing consideration is the child’s welfare under section 1(1) of the Children Act 1989, with regard to the section 1(3) checklist. The court exercises an independent and objective judgment. It must respect and give proper weight to the views of a devoted and responsible parent, but it must give effect to its own welfare judgment if the two differ. A test insulating any parental decision falling within a range of reasonableness is incompatible with the welfare jurisdiction.

3. The law does not prescribe the sequence in which a judge must evaluate the evidence. Where an application depends on conflicting expert opinion, the judge may sensibly resolve that conflict first. The judge must ultimately consider all relevant factors, keep each in proper proportion and conduct a comprehensive evaluation. Strong medical evidence in favour of treatment does not create a legal presumption for the opposing parent to rebut.

4. Sumner J had carried out the required evaluation. He considered each vaccine and each child separately, then examined the evidence concerning the parents, the children’s representative and the likely effect of the orders upon the mothers and children. His findings established that the benefits outweighed the risks and that both mothers could cope with implementation. The proposed reduced programme and suggested deferral of one vaccination were properly rejected on the evidence.

5. Sedley LJ agreed. The judge’s method was logically and practically tailored to the evidence. His unchallenged findings showed that the evidence advanced against vaccination was scientifically untenable, while the reliable evidence established real and sometimes serious risks from non-immunisation, high vaccine effectiveness and rare, non-life-threatening known side-effects. Sir Anthony Evans agreed with both judgments. Permission to appeal was granted, but both appeals were dismissed.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but both appeals from the immunisation orders were dismissed unanimously: [2003] EWCA Civ 1148.

2. High Court, Family Division: Sumner J ordered each mother to take her child for immunisation under a specified schedule and refused permission to appeal: [2003] EWHC 1376 (Fam).