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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> F v E (Matrimonial) 31-Mar-2021 [2021] JRC 120 (31 March 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_120.html Cite as: [2021] JRC 120 |
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Matrimonial - application by the Applicant for a specific issues order - Reasons.
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Before : |
Elizabeth Daultrey, Registrar, Family Division. |
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Between |
F |
Applicant/Respondent |
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And |
E |
Respondent/Petitioner |
Advocate M. R. Godden for the Applicant/Respondent.
E representing herself.
judgment
the Registrar:
1. This is an application by F for a specific issues order, namely that his child G should have the MMR vaccination and the flu vaccine. The application is dated the 19th October 2020. The application is opposed by E, G's mother. For the purpose of these reasons I shall call the applicant "the father" and the respondent "the mother".
2. The parties were married in 2011 and separated in 2016. Their son, G was born [redacted] and is now aged 7. There has been extensive litigation between the parties regarding G which concluded on 31st August 2018, when a final residence order was made in favour of the father, with a shared care arrangement between the parents, whereby G spends 6 days in each two week with the mother and otherwise lives with the father.
3. The father's current application was first considered by the court on the 3rd November 2020. At that hearing it was identified that expert evidence may be needed, the parties were directed to file and exchange position statements including details of any expert evidence they might wish to file, to include the CV, anticipated fees and time scales to report of any proposed expert. A further hearing took place on the 1st December 2020 during which it was clear that the parties had not agreed upon a single joint expert. The parties were given leave to file and serve a report from their own chosen expert, the father wished to instruct Dr Lawrenson and the mother Dr Halvorsen. The order provided that the mother file her expert report first by the 12th February 2021 and the father's expert to reply by the 5th March 2021. The mother did not file a report from Dr Halvorsen as directed. The court considered the matter further on the 25th February 2021 following a C2 application by the father. At that hearing the father was directed to proceed to file a report by Dr Lawrenson by the 12th March 2021, and the mother was given leave to instruct a different expert, Dr Marta Krawiec who would also report by the 12th March 2021.
4. The father filed a report dated the 2nd March 2021, by Dr David Lawrenson Consultant Paediatrician at Jersey General Hospital, the mother has not filed an expert report and makes a preliminary application for an adjournment to allow more time for her to obtain expert evidence.
5. Several days prior to the final hearing, the mother had sent emails to the court to the effect that, if she had more time she would be able to obtain an expert report to support her position. Due to demands upon the court's time, the mother was invited to make her application for an adjournment on the morning of the final hearing.
6. The mother had filed a position statement dated the 24th November 2020 in which she referred to advice that she had received from Dr Halvorsen who she described as a vaccine expert, this advice was in the form of a letter from Dr Halvorsen dated the 6th October 2020, it is one sentence long and states "in view of [G's] personal and family history I do not recommend any of mumps, rubella or flu." The mother stated that Dr Halvorsen had said he could complete a report by the beginning of December 2020. A CV from Dr Halvorsen shows that he worked as a GP from 1988 to 2007, and from 2007 present as the clinical director of a private clinic, "BabyJabs". The mother also provided an index from a book written by Dr Halvorsen relating to vaccines in children.
7. At the interim hearing on the 25th February 2021, the mother had informed the court that she had spoken to Dr Halvorsen and he had told her that he could not assist her in writing a report. As a result, the mother had wished to instruct a different expert, Dr Kraweic. The mother did not provide a CV for Doctor Kraweic but nevertheless was given leave to file a report from Dr Kraweic. The mother was in the event not able to obtain a report from Dr Kraweic. On the 24th March 2021, the mother sent to the court an email she had received from Dr Halvorsen that day in which he states "I may be able to act the an expert witness but I'm currently extremely busy and would not be able to promise a report before the end of May". A further email from Dr Halvorsen dated the 28th March 2021 refers to his fees and states "I am reluctant to act as a medical expert in medico legal cases anyway" he goes on to say that he could submit a report by the 30th April 2021.
8. The mother seeks an adjournment of the final hearing for a period of two months to allow G to be tested for further allergens through his GP, and also to allow time for a report from Dr Halvorsen to be obtained. The mother stated, "I feel that we don't have a full clinical representation of [G's] health". The mother said that she had had difficulty finding an expert a situation not helped by the covid crisis in the UK. She concluded by saying that it would be dangerous to G to refuse an adjournment as this would be to proceed without full information.
9. On behalf of the father, Advocate Godden resisted the mother's application for an adjournment, he went through the history of mother's reported difficulties in obtaining an expert report and pointed out that the mother had had over five months to arrange a report and had been given ample opportunity to do so by the court. Advocate Godden asserted that he did not believe that the mother would obtain a report even if an adjournment were granted, further, that it is confusing what the mother is asking from an expert, if she is seeking further allergy testing, this is not agreed by father as being intrusive and unnecessary. In conclusion, Advocate Godden said that a further adjournment would cause delay prejudicial to the child and was not proportionate or necessary.
10. It is undoubtedly important that both parties have full opportunity, within reasonable limits, to present such evidence to the court as they feel necessary. The mother presents arguments against vaccination for G based on health rather than ethical concerns, and as such, expert medical evidence is clearly relevant. The court must take into account the overriding objective. Article 4(6)(b) of the Children Rules 2005 requires that the court engage in active case management by "Regulating the extent of disclosure of documents and expert evidence so that they are proportionate to the issues in question;". Article 4(6)(h) Charges the court with "giving directions to ensure that the trial of a case proceeds quickly and efficiently." Article 2 of the Children (Jersey) Law 2002 states "In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child." These basic case management principles fall into conflict with the mother's application for an adjournment.
11. The court has not been provided with all of the communication between the mother and Dr Halvorsen, and therefore the reasons for the delay obtaining a report from Dr Halvorsen is in part open to speculation. However, what is known is that Dr Halvorsen has given three different dates for completion of a report, the first being as early as the beginning of December 2020. On the 24th March 2021 the deadline was the end of May 2021, and only four days later it had shifted forward to the end of April 2021. The court has not had sight of a letter of instruction to Dr Halvorsen, and it is therefore not clear whether the report is dependent upon further allergy testing taking place. It is known that Dr Halvorsen is reluctant to act as a court appointed expert. There must also be concern as to whether Dr Halvorsen is a suitable expert. The mother refers to him as a vaccine expert, however save that he has written a book on the subject and runs a private clinic, there is nothing in his CV to indicate that his qualifications are as anything other than a GP, experience is not necessarily the same as expertise.
12. I am not satisfied that if an adjournment is granted, that the mother would file an expert report, as she is no further forward than she was in November 2020. I am not satisfied that the covid pandemic plays any part in the delay, there is no indication from Dr Halvorsen that covid has caused delay, and, as it appears that Dr Halvorsen works exclusively in the area of vaccines for infants and outside of the UK National Health Service, there can be no logical assumption that the pandemic has increased his workload.
13. There is a history of significant litigation between these two parents, they co-parent G and it cannot be in his best interests for there to be further delay in bringing the present litigation to a conclusion.
14. All things considered, I must reject the mother's request for an adjournment and proceed with the final hearing today.
15. The father filed a position statement dated the 18th November 2020, he gave sworn evidence at the hearing. On his behalf advocate Godden filed a skeleton argument and closing arguments in writing.
16. The father is G's primary carer and described him as essentially a healthy child with mild eczema and asthma. G has never been hospitalised in the father's care. He described the EpiPen G carries as a precautionary measure. Regarding the list of allergens that concern the mother, the father disputes the mother has ever evidenced that she herself has these allergies. In any event the father says that he can dismiss some of the potential allergies as not affecting G whilst in his care, for example gluten, detergents, nuts or chicken all of which G has been exposed to in his care without ill effects.
17. The father is concerned that the mother exaggerates health issues, and that G "has had too much to do with healthcare professionals in his young years."
18. The father wishes G to be vaccinated out of fatherly concern, he is aware that measles can cause long term disabilities and damage as can rubella and mumps. He feels that it would be negligent of him not to immunise his son. Regarding the influenza vaccine, he wishes G to be vaccinated "especially because and not in spite of his asthma" as flu can cause breathing difficulties.
19. In cross examination by the mother, the father confirmed that he had been present when G had his pneumococcal vaccine but denies that he became "floppy" or suffered any adverse reaction other than being upset.
20. The mother filed a position statement dated the 24th November 2020, also she has filed a skeleton argument and a written summary of her position and comments upon the evidence by way of closing argument. The mother has put questions in writing to Dr Lawrenson, she also files today photographs of G showing what she says are allergic reactions. The mother has given sworn evidence today.
21. Mother's position is that she is not against vaccinations. Her objections relate specifically to G's medical sensibilities, she says "[G's] has allergies and asthma which means he is not like other children and risks for him are not the same as for other children. [G] is more vulnerable to health complications and adverse reactions. [G] has an EpiPen unlike other children."
22. Regarding allergies, the mother believes that G has allergies which have not yet been diagnosed. She states that she herself has 42 known allergies and has herself therefore been medically contraindicated against the MMR and flu vaccines. She believes that G is likely to have other allergies for which he has not yet been tested, she has produced photographs of G suffering from what she believes to be allergic reactions to unknown factors. These include a photograph of a rash suffered by G from direct contact with a sticking plaster which she believes is indicative of G having an allergy to latex. She produced a list of potential allergens, 42 in total which include foods, environmental allergens, drugs/chemicals. The mother is concerned that G may suffer allergies to these factors. She is concerned that G has not received the allergy testing which would be appropriate for him due to limitations within Jersey health services. The mother fears that unless and until G is tested for allergies to these substances, the full extent of his potential susceptibility to allergic/ adverse reaction to the MMR and Flu vaccine cannot be known and that therefore these vaccines are not safe for G. G carries an EpiPen, which is not commomplace for healthy children, this in itself demonstrates G's potential "susceptibility to adverse reactions and health complications".
23. The mother points to G's medical history in support of her concerns. In 2019 G twice attended A and E with breathing difficulties, also, when G had his last pneumococcal vaccine she says that he became "floppy". The mother includes in her skeleton and closing arguments, extracts from publications including Dr Halverson's, which indicate that the children who have had adverse reactions to MMR have been children who suffered asthma, excema, hayfever, constipation, are subject to recurrent coughs and colds, have family histories of auto immune disorders. The mother also quotes from advice she says was given to her by Dr Marta Kraweic who she also describes as a vaccine allergy specialist, she says in her skeleton argument:
"I have spoken to a Vaccine allergy specialist, Dr Marta Kraweic, who has identified allergens in vaccines and tests children for allergic reactions to allergens in vaccines. She is highly busy and difficult to get hold of. She asked me if [G] is allergic to some common allergens in the MMR and Flu vaccine which include: a) Neomycin? b) Latex? c) Egg d) Gelatine? Dr Marta Kraweic said [G] could have an anaphylactic reaction to the vaccines was possible and recommends [G] have a comprehensive allergy testing, including common allergens in the MMR and Flu vaccines, gelatine, latex, neomycin, etc. [G] reacts to latex, see photos and [G's] GP, Dr Wareing is helping organise full comprehensive allergy test (294 allergens) all from one small blood sample, IgE blood test. The vaccine allergy specialist said that it be safer for [G] to be tested for these allergens in the vaccines so there was clear and precise information on his allergies. I do not feel it is fair to make decisions lightly, when there is a risk of anaphylactic adverse reactions in a child. Dr Kraweic stated anaphylactic shock was a possibility for [G]. We will be able to manage [G's] health and life more efficiently when we know everything [G] is allergic to."
24. The mother's fear is that if G suffers an allergic reaction to the proposed vaccines, that he could suffer an anaphylactic reaction which could be potentially fatal. Her concerns are exacerbated by her perception that paediatric services on Jersey would struggle to manage such an adverse reaction because there is no dedicated paediatric intensive care unit on the island. She fears that this could lead to G being flown to Southampton without either of his parents. With regard to the flu vaccine, the mother asserts that the doctors she has spoken to and the publications she has read advise that the flu vaccine is contraindicated for children with asthma as it can make their asthma worse.
25. The mother sets against what she perceives as being potentially catastrophic outcomes of G receiving the proposed vaccines, that there are only modest risks if he does not receive the vaccines. She accepts that measles can be a serious disease and agrees that G should have the single measles vaccine, however she dismisses flu, mumps and rubella as mild illnesses and not of significant risk to G. The Mother concludes:
"[G], a child who has known adverse allergic reactions and is susceptible to health complications and serious life threatening anaphylactic adverse reactions. Therefore, because of this, he should not have the Flu, Mumps and Rubella vaccines as advised by a Dr Halvorsen after careful medical consideration and in accordance with protecting [G] from"any harm which the child has suffered or risk of suffering". I ask for a medical exemption for [G] from all Flu, Mumps and Rubella vaccines."
26. In cross examination, Advocate Godden asked the mother, if G tested negative for all the allergens that she has expressed concern about, would she then agree to G receiving the MMR vaccine, the mother answered that she would still object to the MMR vaccine, she did not explain this theoretical objection and returned repeatedly to the advice she says that she has received from Dr Halvorsen, that G should not receive this vaccine. The mother confirmed, that when Dr Halvorsen gave his one line advice in October 2020, he had not had sight of G's medical records.
27. Dr Lawrenson is G's treating paediatrician. He was instructed by the father and is not accepted by the mother as a joint expert. Dr Lawrenson filed a report dated the 2nd March 2021, he has answered written questions posed by the mother and gave sworn evidence at the hearing.
28. Dr Lawrenson in his report states "As far as I know there are no contraindications for [G] to receive the MMR vaccine. None of the allergies that [G] suffers from are a contraindication to MMR vaccination".
29. It is his view that the risk of G being allergic to a substance within the MMR vaccine is "extremely low". Dr Lawrenson acknowledges that:
"there are some risks to the MMR vaccine including allergic reactions but the benefits of this vaccine far outweigh the risks of vaccination". He advises against the measles vaccine being given as a single dose on the basis that "the single dose vaccine is not licenced for use in the UK. It is not available in Jersey nor it nor is it available in the UK through any reputable provider."
30. Regarding the flu vaccination Dr Lawrenson states:
"it is possible that [G] has an unknown allergy to an ingredient in the influenza vaccine. Having said that, these allergies are extremely uncommon, and I do not believe that they are significantly higher for [G] than the general population. There is no reason to believe that [G] has any unknown allergies. The influenza vaccine is proven to be safe."
31. Dr Lawrenson is clear in his advice that any risks posed by either vaccine are outweighed by the benefits of receiving the vaccine. He confirms that measles, mumps and rubella are all potentially dangerous illnesses, and acknowledges that for G at this stage in his life, the risk from influenza is modest. He advises nevertheless, that the potential benefits outweighs any risks in his opinion.
32. In conclusion, Dr Lawrenson says:
"as far as I see the risk benefit ratio of the MMR vaccine comes down heavily on the side of [G] receiving the MMR vaccine .....as far as the influenza vaccine goes, the risk benefit ratio isn't as powerful as it is for the MMR vaccine but I do think that it would be of benefit to [G]."
33. In response to the mother's questions, Dr Lawrenson describes [G] as having mild, well controlled asthma. The EpiPen he carries relates to a possible peanut allergy. He does not think [G] needs to avoid vaccines or undergo any further allergy testing.
34. Dr Lawrenson gave sworn evidence at the hearing. He considered the photographs produced by the mother said to show allergic reactions. Dr Lawrenson commented that he would not make a diagnosis of allergic reaction in response to the pictures, he said that latex allergy was rare whereas it was common for children to react to the adhesive in plasters.
35. In response to questions asked by the mother. Dr Lawrenson confirmed that his advice that further allergy testing was unnecessary was not based upon limitations of allergy testing on Jersey. He advised that the results of tests for allergic reaction from a substance that the patient has not been exposed to "can be unhelpful, test results do not come back in black and white. There can be false negative and positive results. The only way to absolutely tell is controlled exposure".
36. Dr Lawrenson cast doubt upon the advice that mother says that she has received, stating that there is no recognized accreditation of "vaccine allergy specialist". Dr Lawrenson made reference to the field of allergies attracting what he described as "fringe practitioners profiting from fear". Regarding Dr Kraweic, Dr Lawrenson said that he had not heard of her and had doubts about her credentials.
37. Dr Lawrenson answered mother's concerns regarding the facilities on Jersey both for allergy testing and intensive care treatments for children, reassuring her that whilst Jersey does not have a dedicated paediatric intensive care facility, the hospital can deal with any medical emergency that might arise.
38. The application before the court is for a specific issues order, accordingly the court must have regard to Article 2 of the Children (Jersey) Law 2002, which states as follows:
39. Article 2 (1) determines that the child's welfare is the court's paramount consideration. I do not doubt for a moment that each party shares this priority, they differ only as to how G's welfare needs are to be met.
40. Article 2(3) sets out the criteria against which welfare needs are to be evaluated.
41. The Court is greatly assisted by recent clear and detailed authorities from the courts of England and Wales regarding child vaccination.
42. Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 is a Court of Appeal judgement dated 22nd May 2020, given in circumstances where, a local authority shared parental responsibility with the parents of a young child and the parents objected to the child receiving vaccinations. The lengthy and detailed Judgement includes a precis of all relevant preceding reported judgements relating to both private and public law vaccination cases, the court had also had the benefit of expert evidence. At paragraph 104, Lady Justice King concludes:
43. In December 2020, this judgement was followed in the High Court in M v H and others [2020] EWFC 93, it was stated by Macdonald J at paragraph 44:
The Judge continued at paragraph 46:
44. Advocate Godden also refers the court to the earlier case of Re SL (Permission to vaccinate) [2017] EWHC 125 (Fam) on the basis of his submission that the facts of that case are of particular relevance. There the Mother opposed vaccination on the basis of her own previous experience against clear expert evidence in support of vaccination. In summarising the position Macdonald J stated at paragraph 46 of his judgment:
45. Recent case law as set out in these reasons provides a clear pathway that this court should follow, that:
46. The mother's opposition to the application is based upon there being a medical contraindication as to why the MMR and flu vaccines are not in G's best interests. She says that the vaccines proposed pose significant health risks to G which outweigh any health risks in the event he were to contract mumps, rubella or flu. The mother acknowledges that there is a health risk to G if he were to catch measles, and therefore agrees to G receiving a single vaccine against measles.
47. The mother's main evidence in support of her position is in the form of a one line written advice from Dr Halvorsen, given without having sight of G's medical records, the advice does not provide any explanation or reasons for that advice save that it is by reason of "[G's] personal and family history". As Dr Halvorsen had not seen G's medical records, it is unknown what history is referred to. The mother also draws upon various publications, which in the absence of a referenced expert report relating specifically to G, must be viewed with caution by this court, particularly where they are contradictory to the evidence of G's own treating Paediatrician.
48. The mother quotes from advice she says she received from Dr Kraweic. The court has nothing in writing from Dr Kraweic nor had sight of her CV, the court cannot place much weight upon medical evidence presented in this way.
49. The mother is critical of and does not accept Dr Lawrenson's advice, that advice is however unchallenged by reliable contradictory medical evidence specific to G. The mother relies upon the brief advice she has received from Dr Halvorsen and from her own detailed research which she sets out and references clearly. I have no reason to dismiss the publications she quotes as "junk science" however they do not represent "a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application" and are not presented as such. I have no reason to be dismissive of Dr Halvorsen, but his advice to the mother does not amount to "a well evidenced medical contraindication specific to the child or children who are subject of the application".
50. I found Dr Lawrenson to be a helpful and impressive witness. He has provided to the court, clear advice that, any potential risks are small and far outweighed by the benefits conferred by vaccination. He has patiently and thoroughly answered the mother's concerns, nevertheless she steadfastly refuses to draw any comfort from that advice.
51. Dr Lawrenson is the sole expert witness in this application, he is an experienced Paediatrician and he knows G having treated him on multiple occasions, he is aware of G's medical history. His evidence is not challenged by reference to contradictory medical evidence specific to G.
52. I cannot accept that the mother has provided to the court reliable evidence that there is a medical contraindication to G having the proposed vaccines, either in any event and certainly not sufficient to undermine Dr Lawrenson's evidence and advice.
53. There is a concerning rigidity to the mother's position, faced with a theoretical scenario in which, if it were known that G did not suffer the allergies that the mother fears that he potentially suffers, she confirmed that she would nevertheless oppose G receiving the MMR and flu vaccines. She is insistent that the single measles vaccination is a preferable option despite Dr Lawrenson confirming that this is not available in Jersey nor licenced for use in the UK.
54. I accept the advice given by Dr Lawrenson that it is in G's best interests to receive the vaccines proposed by the father, and accordingly I make the order the father seeks.
