UPDATE: Back to school – or not?

back to school or not UPDATE

Back to school - or not?

Recently we blogged about Laurence Fox and his claim that he would take his sons out of school should vaccines be rolled out for 12-year-olds on the basis that he feared they would have the Covid jab without his permission.

Now there has been a case in America where a father in New York has been banned, by a family court judge, from seeing his daughter unless he gets the Covid vaccination.

Family Law Associate Melissa Jones looks at the issues.

This is an interesting scenario. In this particular case, contact was not deemed to be in the best interest of the child on the basis that  the father was opposed to the Covid vaccination. The judge was quite strict in his ruling, notably amid a worrying time in the middle of a global pandemic, and made the following comments:

“The dangers of voluntarily remaining unvaccinated during access with a child while the Covid-19 virus remains a threat to children’s health and safety cannot be understated.

“Unfortunately, and to my mind, incomprehensibly, a sizable minority, seizing upon misinformation, conspiracy theories, and muddled notions of ‘individual liberty’, have refused all entreaties to be vaccinated.”

What happens with contact in the UK if a parent refuses the vaccine?

It’s a possible worry for a lot of parents, but not one that has seemingly featured in the family courts in England and Wales. If this was a matter raised by a parent, within the English Courts, those Courts are likely to be guided by Cafcass, the advisory service to the Courts, to prepare an assessment to consider the risk factors and to decide whether contact is actually in a child’s best interest.

Extreme circumstances

In extreme circumstances, particularly if a child is medically vulnerable, Cafcass and the court may exercise caution: but it would be a rarity.  No doubt the Court would also consider NHS guidance and other expert evidence they consider necessary.  Plus, there are now many modern alternatives to face-to-face contact, such as video contact and voice notes, that could mean the parent and child relationship could be maintained.  It is a child’s right to have a relationship with both parents and the Court will want to maintain that relationship wherever possible.

The court application

If the other parent is strongly opposed to their child being vaccinated (not just the Covid vaccine) and they cannot agree on this, then they could apply to the court for a Prohibited Steps Order and/or Specific Issue Order, which are orders that can prevent certain actions being taken by a parent, and/or making decisions on matters that parents cannot agree upon in the exercising of their rights and duties relating to parental responsibility.  Medical issues fall into these categories.

The court will consider the parents’ opinions and the best interests of the children.

Before making an application to the court, it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to agree to vaccinate your child, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move.

With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

Back to school – or not?

Laurence Fox back to school or not covid children

Back to school - or not?

Laurence Fox, who shares two sons, Winston, 12, and Eugene, nine, with ex-wife Billie Piper, has once again hit the headlines, this time in relation to the “anti-vaxx” row. He has claimed he will take his sons out of school should vaccinations be rolled out for 12-year-olds, saying he fears they will have the Covid jab without his permission.

The question is, can a parent remove a child from school in the first place?

Family Law Associate Melissa Jones looks at the options available.

There is no plan – as of yet – for children in schools to be vaccinated before they return to school in September. But were such a plan in place, would a parent be able to stop their children from going to school? Given that there is a central government policy stating that children must attend school, any parent stopping their child from doing so would be appear to be in contravention of this policy, and likely subject to fines.

Mr Fox appears to be suggesting is that he wants to de-register the children and home school them. To do so, he would need the other parent’s permission as they share parental responsibility (given that they were married to one another) and need to make important decisions like education in consultation with one another.

What is parental responsibility?

Parental responsibility is as per section 3(1) of the Children Act 1989 (CA 1989) which confers all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

What happens if you cannot agree on home schooling?

If parents cannot agree arrangements for their child or children in respect of their education, they can apply to court for a Specific Issue Order, and the court can address the issue of whether or not a child should remain at their current school or move to the other preferred school (in this case home schooling).

The court application

In the above scenario, if the other parent is strongly opposed to the change of school or home schooling, then they could apply to the court for a Prohibited Steps Order, which is an order that limits when certain rights and duties which can be exercised, such as making decisions about their education.

The court will consider the parents’ opinions and the best interests of the children. The children’s educational development, efficient home schooling techniques and underlying health issues in the family are some of the matters that will be considered by the court when deciding the issue.

Before making an application to the court,  it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to consider moving your child’s school, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move. With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

Given that children returning to school is imminent – some may have already started the new term – a parent may struggle to get an urgent court hearing, although it may be that the court fixes a date as soon as it can. In the interim, without an order or decision you will need to keep open communication with the other parent.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re 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.

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