Keep the courts out of family life

The UK Court of Appeal has ruled that two children should have a series of inoculations, including MMR, against the wishes of their mothers (1). In reaching this decision the court upheld the decision of a High Court judge in June that there were sound medical reasons for administering the inoculations and that this was in the best interests of the children (2).

There can be little doubt, on the basis of medical evidence, that inoculations are in the best interests of children. Indeed, the best evidence that the mothers could muster was that of general practitioner and homeopath Dr Donegan, whose report was based on no independent research. Most of the published papers cited by Dr Donegan in support of her views turned out either to support the contrary position or to give no support to her own words. With reference to the mothers’ medical evidence Lord Justice Sedley concluded that the court had been ‘presented with junk science’.

But is it right that judges should be making decisions about whether a mother should inoculate her children? Are there not some decisions that are for parents alone to make?

The High Court was asked by the fathers of the children to make the orders; had the parents been able to agree, the courts’ powers would never have been invoked. It is clear from the cases that the girls’ respective parents do not get on, and that there have been disputes concerning the fathers’ contact with their respective daughters. In one case the mother, who was interested in holistic health and natural parenting, had even been upset when the father gave his daughter Sudafed on the advice of a chemist. Family disputes take place every day, but not all parents, even separated ones, find it either necessary to ask the courts for a resolution.

In recent years the courts have been more willing to intervene in domestic disputes. The Children Act 1989 gave the courts power to make orders, known as ‘specific issue orders’, relating to children in family proceedings. But where parents do not agree, the courts have traditionally limited their willingness to make such orders to ‘a small group of important decisions’.

The list originally included issues such as sterilisation, circumcision and change of a child’s surname. Now it seems that the issue of immunisation has been added to this group without even being argued over in court, because the parties assumed that the court had a power to make the order. The group of issues over which courts may now make a specific issue order is no longer limited by any realistic sense of importance.

In the wake of these two inoculation cases it is reported that more parents who are divided over whether to give their children the MMR vaccine are now expected to take their disagreements to court (3). If so, the recent trend of involving the courts in family disputes will be amplified. Between 1999 and 2002 the number of specific issue orders made by the courts in England and Wales increased by 44 percent to just under 3000 (4).

The mother in one of the inoculation cases was reported to have accepted the court’s ruling. But the mother in the other case was reported to be ‘adamant’ that her daughter would not have the vaccinations and has vowed to take her case to the House of Lords and the European Court of Human Rights (5). In the immediate aftermath of a court case it is not unusual for a defeated part to talk defiantly; although time is sometimes a healer it is usually the case that court hearings cause the parties to become more entrenched and less accommodating.

In family disputes it is rare for either party to benefit. At the end of the day it is the parties themselves who have to talk to one another to sort out issues relating to their children. Invoking an outside party, such as a judge, often creates an additional bitterness arising from the fact that what the parents instinctively consider to be a matter for them has been resolved by somebody else.

But on the inoculation cases it would be wrong to point the finger just at the parents for invoking the courts into a domestic dispute, or at the courts for accepting jurisdiction over them. What makes judicial intervention in such disputes commonplace today is the fact that, as a society, we have all but abandoned any notion of a private sphere that is beyond state intervention. If estranged parents cannot agree over what jabs to have, then it no longer seems strange to refer the matter to the courts.

Yet despite the fact that the two inoculation cases were heard in the High Court on 14 days over a period of 10 months, involved 10 barristers and resulted in a judgement that ran to over 21,000 words, many would now see this as an appropriate way to resolve a domestic squabble. Indeed, if the courts had simply declined jurisdiction on the grounds that the parents should go away and sort it out themselves, many would have seen that as a dereliction of judicial responsibility.

There is no one reason why social attitudes to judicial intervention have changed. But a factor has been the government’s focus on the home as a place where children are neglected and abused. The government’s recent announcement that childminders are to be banned from smacking their charges and from smoking in front of them shows the extent to which a state-knows-best mentality now prevails (6). By constantly promoting the idea that we cannot be trusted to bring up our own children, our willingness to involve the courts has increased.

Forget the joke about numbers of men required to change a few lightbulbs. Have you heard the one about the 10 barristers, five instructing firms of solicitors, one High Court judge and three Appeal Court judges who were required to consider a few jabs? It might be funny, if it wasn’t for the fact that the people who this affected – two fathers, two mothers and two children – were mere observers.

Jon Holbrook is a barrister. Email jon.holbrook@btinternet.com

Read on:

spiked-issue: MMR vaccine

(1) [2003] EWCA Civ 1148, 30 July 2003

(2) [2003] EWHC 1376 (Fam), 13 June 2003

(3) ‘Mothers lose fight to choose whether children get MMR’, Maxine Frith, Independent, 31 July 2003

(4) Judicial Statistics for 1999 and 2002

(5) ‘Mothers lose fight to choose whether children get MMR’, Maxine Frith, Independent, 31 July 2003

(6) Childminder smack ban welcomed, BBC News, 4 May 2003