Re B [2003] EWCA Civ 1148

Immunisation – welfare of child-paramount – paramount consideration – parental disputes

 

This was an appeal from a decision, on the application of fathers in two separate cases for a “specific issue order” under s8 Children Act 1989, that immunisation against childhood diseases was in the best interests of the two children despite the vigorous objections of the mothers who were the primary carers. In both cases the parents were unmarried and had hardly cohabited, if at all, during the child’s lifetime. The fathers sought a direction for the full range of immunisation (including, but not restricted to, the MMR vaccination) for the children, who had never received any form of immunisation. The judge considered the position separately in respect of each disease. In reliance on the expert evidence, he concluded in relation to each child and each immunisation that the benefits outweighed the risks. The judge considered the impact of the order sought on each mother, but decided the case by reference to the paramount consideration of the welfare of the children. The mothers appealed arguing that the judge wrongly adopted a two-stage test, in which he decided that immunisation was in the girls’ best interests and then determined that there were not sufficient non-medical reasons for rejecting the applications for immunisation orders.

 

Upholding the decision, the Court of Appeal ruled that the judge did not wrongly take the medical evidence to create a presumption in favour of immunisation, which the mothers had to displace. Most parental disputes under s8 CA 1989 did not involve expert evidence. The judge could not be criticised if he chose to make his assessment of the expert evidence before considering other relevant factors. Further, the judge had conducted a comprehensive survey and considered all the relevant factors. Ultimately, it was clear that the applications had been decided by applying the paramount consideration of the welfare of the two children. So long as the judge’s approach was sensibly tailored to the evidence and the issues, no question of law arose about how he or she reached a conclusion.

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