How can I enforce a Children Act Order?

how can I enforce a Children Act Order?

How can I enforce a Children Act Order?

“They’re ill.”

“You were late by five minutes.”

“They don’t want to see you.”

“It isn’t on this week, you have your dates wrong.”

Above are just a handful of reasons that a parent might hear as to why a Child Arrangements Order cannot be complied with. But is this right and does this ultimately trump a court order? Associate Melissa Jones explains.

How can you enforce a Children Act Order? If you have been involved in Children Act Proceedings and obtained a final court order, there are consequences if a party breaches an order, as follows:

(a) They may be held in contempt of court and be committed to prison or fined; and/or

(b) The court may make an order requiring them to undertake unpaid work (an enforcement order) and/or an order that they pay financial compensation.

How does this really work in practice?

Essentially, the court makes the order and expects parents to ensure it works on the ground. There may be times though when a child is ill, or there is an emergency, for example , which might mean that the child arrangements cannot go ahead on occasion. However, this should not happen repeatedly and if it does then unless the other parent has “reasonable excuse” for not allowing the contact, then they would appear to be in breach of the order.

What is the enforcement court process?

There  is still an expectation that you take steps to resolve matters before applying to the court. As you may have heard before, the court is a last resort. It is best practice, before an application is made, to address the issue with the other party and inform them of the implications of not doing so.   If the matter is not resolved, then you may have little choice but to apply to the court for enforcement.

What happens when I make my application?

You can make an application to enforce the order if you feel that it has  not been complied with. At the first hearing the court can be asked to consider the facts of the alleged breach and, in some cases, if these breaches are not agreed, list a hearing to determine those facts. The court can also decide, if after listening to the reason(s) for non-compliance, if CAFCASS or Social Services need to get involved.

The court process usually follows the same process as your last case (the one where you obtained your final order), that is:

* First Hearing Dispute Resolution Appointment (FHDRA)- the purpose of the hearing is to try and agree matters as much as possible

* Review hearing- this will be listed if matters cannot be resolved at the first hearing and the non-compliance issue remains live. It might have been that a report was ordered at the FHDRA for CAFCASS or Social Services to complete, for review at this hearing

* Final hearing- where the court will make an order after listening to evidence from the parties

The bottom line in these types of cases is, that there is an order in force, and it should be adhered to. If a parent is not able to comply with an order, they are able to make an application to ‘vary’ the order to ensure that they do not indirectly continue to breach an order.

If the court finds that a party has not complied with the order it can take a number of steps as detailed above, but one of lesser known options, and quite a rarity, is to order a transfer of residence, with the child going to live with the other parent. The latter happened in the following case: Re C (A Child) [2018] EWHC 557 (Fam)

Given the implications of not adhering to an order and the court’s robust approach, it is best to get advice as early as possible.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

When parents can’t agree on vaccinating their child

child vaccination

When parents can’t agree on vaccinating their child

Parents, married or separated, will quite naturally disagree on many things. As family lawyers, we see these disagreements a lot but there is a worrying rise of cases where parents cannot agree on vaccinating their child.

Vaccinations have already proved to be a tricky subject for some parents: you may remember parents disagreeing about the MMR vaccination in late 1990s and the now disproven theories about the connection to autism.

It is important to bear in mind that the starting point regarding childhood vaccinations is that everyone who holds ‘parental responsibility’ for a child should be consulted and should consent to children receiving any vaccination.

A recent case has brought the issue regarding whether or not children should receive vaccinations to our attention again.

In December 2020, the court handed down Judgement in the case of M v H (Private Law Vaccination) [2020] EWFC 93, [2020] All ER (D) 115 (Dec)

The court determined whether two children should receive the vaccinations as set out in the NHS vaccination schedule.

The parents concerned had been separated for some time, and had two children from their relationship. The father’s initial application sought a Specific Issue Order, requiring that the children have the MMR vaccine. However, this was later extended to include any further childhood vaccines as per the NHS schedule, any vaccinations that may be required before foreign travel, and any vaccination against COVID-19 (should that become a government recommendation).

However, the mother opposed this application. The Judge hearing the matter, Mr. Justice MacDonald,  decided he would limit his Judgement to only those vaccinations on the NHS schedule, stating it would not be appropriate to determine at present vaccinations for foreign travel, which may or may not be required in the future, and likewise the COVID-19 vaccination. He found there was no evidence before the court on these vaccinations, and therefore it would not be appropriate for him to decide on this.

COVID-19

When giving his Judgment in relation to the COVID-19 vaccination, Mr. Justice MacDonald did however state in paragraph four of his Judgment:

“I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.”

Children Act

The parents were going through private Children Act proceedings regarding contact arrangements, however on the recommendations of the children’s guardian, it was agreed this issue should be dealt with separately. The mother represented herself as a litigant in person (it should be noted she did apply for an adjournment to seek legal representation, this being refused by the Judge, who said he did not feel the mother would be prejudiced by matters proceeding without her being legally represented, and that the two statements she had filed demonstrated her understanding of the issues and her ability to argue and put forward her case and position).

The court relied on the statements of the parties only, that is, without any expert evidence, and having nothing from a jointly-instructed medical professional.

The arguments put forward

The mother was opposing the children having their NHS scheduled childhood vaccinations saying her opposition was based on six years’ research; she also referred to an article she had found suggesting a link between the MMR vaccine and autism. The mother directed the court to various articles and papers, including an American paediatrician, Larry Palevsky, and American nephrologist, Dr Suzanne Humphries. It was commented by the Judge that both individuals were vocal advocates against vaccinations. The mother suggested it was not in the children’s best interests to have the vaccinations, suggesting this put them at risk of further health issues, and children whom had not been vaccinated had a better natural immunity to illnesses.

The mother put forward nine arguments:

  • Referencing the comments of Lady Justice King in the case of Re: H (A Child: Parental Responsibility; Vaccination) that, “vaccination is not immunisation”. She submitted that the administration of a vaccination is to help the body develop an immune system to protect from the disease and is therefore not 100% effective. The mother’s submissions were that between two and 10% of cases a vaccination was ineffective
  • That the vaccination did not prevent a party carrying the disease
  • That the diseases which the children were being vaccinated against are generally mild and cause limited difficulties for healthy, well-nourished children
  • That further investigation was required into the ingredients in the vaccinations and, listing the ingredients in the MMR vaccine, the mother stated she objected to these ingredients being injected into her children
  • That the recommendation by Public Health England that children should be vaccinated was out of date, and had fallen behind further research and developments and advances in science, which were suggesting the vaccines caused long term health issues in children
  • That the vaccines cause damage to the children, with the side effects being more detrimental to the children than the benefits. The mother suggested there have been only two deaths of children under 10 from measles in the last 10 years whereas, by comparison, a far greater number of claims have been made for damages against the UK Vaccine Damages Programme Unit
  • That the children should be tested for ‘natural immunity’ before being given any vaccinations
  • That any order forcing her to have the children vaccinated would be an unnecessary and disproportionate breach of Article 8 of the Human Rights Act, right to a family life, and asserting forcing the children to be vaccinated would constitute an assault or grievous bodily harm

This case can be distinguished from previous authorities where vaccinations have been directed on the grounds that the previous case referenced by the Judge Re: H (A Child: Parental Responsibility: Vaccination) was a public law case. The mother submitted in this case there were wider welfare concerns, which did not apply in this matter.

The Children’s Guardian supported the father’s position that the children be vaccinated, stating this was in accordance with the recommendations of Public Health England and NHS Guidance.

The Judgment

In giving his Judgment, Mr Justice MacDonald considered the Guidance on Parental Responsibility and where those holding parental responsibility could not agree on the immunisation of a child, this should be determined by the court.

Mr Justice MacDonald made reference in his Judgment to the case of Re H (A Child: Parental Responsibility: Vaccination), stating the Court of Appeal undertook “a comprehensive review of this area” and reached the following conclusions:

 

  • It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated
  • Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good
  • All the evidence presently available supports the Public Health England advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole
  • The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: ‘Immunisation against infectious disease’, published in 2013 and updated since
  • The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases
  • The clarity regarding the evidence base, with respect to MMR and the other vaccinations that are habitually given to children, should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications
  • Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects
  • Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare
  • This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged

Mr Justice MacDonald held:

“With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”

The future

This case reaffirmed the previous Judgment and guidance of Re H (A Child: Parental Responsibility: Vaccination) which still applies in cases where there is a dispute about a child being vaccinated. The court confirmed there is nothing, either in this jurisdiction or abroad, that goes against the recommendations of Public Health England that it is in the best interests for children to be vaccinated.

Although the Judge was very careful to try and avoid setting any precedent in relation to any possible COVID-19 vaccination, due to the timing of this Judgment, this case may have set a precedent and guidance that could prove highly relevant should it be suggested that children be vaccinated against COVID-19 and this form part of the NHS’s schedule and recommendations. If this was to be recommended by the NHS, it may appear likely that the court would find it difficult to direct children should not be vaccinated.

If you are affected by any of the issues raised here, please seek the advice of an experienced family lawyer. Get in touch with us today. We are here to help.

McALISTER FAMILY LAW
MCALISTER HQ LOCATION:

Second Floor, Commercial Wharf

6 Commercial Street
Manchester, M15 4PZ

GET IN CONTACT
SOCIAL MEDIA:
HOW CAN WE HELP?
HOW CAN WE HELP?

If your enquiry is urgent please call

+44 (0)333 202 6433