Family Law Newsletter #02
newsletter
28/11/2023
Welcome
Family Law Newsletter 02; including articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters.
Edited by Francesca Massarella and Josie Canham-Williams; news and Case Updates by 2024 Pupil Sarah Hutchinson.
Contributors
News
‘Think Autism!’: The importance and impact of early identification of autistic parents and children within public law children proceedings:
Read
Cases
Re WSP (A Child) (Vaccination: religious objection) [2023] ECWA 2622 (Fam)
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISON BEFORE PAUL BOWEN KC (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Factual Background:
This case relates to a child, WSP, a boy aged 9 months who was made the subject of an interim care order in March 2023 and has been in local authority care since that date.
The mother asked the court to prevent the Local Authority from arranging for the child to receive routine childhood vaccinations. She maintained that it was not in the best interest of WSP to be vaccinated and considered that it would be contrary to her Muslim faith and violate her Article 9 ECHR rights for WSP to be vaccinated.
The Local Authority and Guardian opposed the application.
The background to the case was outlined at paragraphs 4 to 12. To summarise, there were concerns that the mother couldn’t safely care for WSP due to her mental health condition.
The Applicable Law:
The legal position was outlined at paragraphs 13 to 22. Most notably, Re H (A Child) [2013] Fam 133 is the starting point for child vaccination cases. It outlined that that childhood vaccinations are in the best interests of otherwise healthy children.
Where an objection is founded on matters of faith it is protected by Article 9 of the Convention. However, Strasbourg has yet to rule definitively on the Article 9 compatibility of infant vaccinations. At common law and under Article 9 relevant principles the court must give concern to are set out by Munby LJ in Re G (Education Religious Upbringing) [2013] 1 FLR 677, at [20-51].
- First, the right to hold (and change) any religious belief, which is absolute and unconditional.
- Second, the right to manifest one’s religious freedom in ‘worship, teaching, practice and observance’, which is a qualified right because its exercise may have an impact on others. The right may therefore be overridden by a state body, provided there is a sufficiently pressing need to do so for one of the purposes in Article 9(2) and the means used are both lawful (authorised by a law that is foreseeable, accessible and contains adequate safeguards) and proportionate, applying the four stage proportionality test in Bank Mellat v Her Majesty’s Treasury (No 2) (SC(E)) [2014] A.C. 700, [20] and allowing the state body an appropriate discretionary area of judgment.
Decision:
The Court considered that the mother did not produce ‘cogent, objective medial and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations’.
The Court found that the mother’s objections on religious grounds did not outweigh WSP’s welfare interests in receiving vaccinations. The Judge noted that whilst the mother’s religious objections must be given respect, WSP’s welfare was the paramount consideration. He found that a parent’s decision to consent or refuse to have their child vaccinated on religious grounds is a ‘manifestation’ of religious belief that may be regulated by the state and courts without breaching Article 9 ECHR.
The mother’s application for an injunction to restrain vaccination was dismissed.
J, K AND L (Children: Interim Removal) [2023] EWCA Civ 1266
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE CENTRAL FAMILY COURT BEFORE LORD JUSTICE BAKER, LORD JUSTICE SIMLER AND LADY JUSTICE ELISABETH LAING
Factual Background:
This is an appeal against interim care orders made in respect of three children, twin girls aged 8 and their younger sister aged 6.
The family has been known to social services for many years and the mother has had a very sad and troubled life. In May 2023, following concerns about the mother’s health, District Judge Orchover made a child arrangements order providing that the children live with their father and maintain unsupervised contact with their mother.
At a hearing on 26 July 2023, the local authority sought to place the children in foster care under interim care orders as they had concerns about the children’s emotional wellbeing following contact with the mother. Specifically, that the children were being allowed overnight visits with the mother and then being asked to lie about it. HHJ Oliver determined that, if the current situation continued, the children would continue to be at risk of immediate, emotional harm. He granted the local authority’s applications for interim care orders in relation to all three children. An application by the father for permission to appeal and an application by both parents for a stay of the order pending an application to the Court of Appeal were refused.
Permission to appeal was then granted by Moylan LJ and at a hearing on 10 October 2023 it was submitted that HHJ Oliver had failed to comply with the well-established principles that the court should adopt the least interventionalist course consistent with safeguarding children’s safety and welfare. The appeal was allowed.
Applicable Law:
The court highlighted that, even if the threshold criteria is met [CA 1989, s.31(2)], it does not follow that the child(ren) must always be removed from the care of their parents.
The principles to be applied by a court considering whether to authorise the removal of a child under an interim care order were summarised by Peter Jackson LJ in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998, at [20].
It was noted that HHJ Oliver had referred to “the immediate risk of serious harm” during his judgment, which is not the test to be applied as detailed in Re L-A (Children) [2009] EWCA Civ 822. It was therefore questioned whether the correct test had been applied.
Dame Siobhan Keegan acknowledged in Re H-W (Children) [2022] UKSC 17, at [45] that it is a “longstanding proposition of English childcare law that the aim must be to make the least interventionalist possible order”.
Decision:
The court noted that, whilst a welfare analysis was carried out, nowhere in the judgment was the ‘very positive evidence about the care being provided to the children by their father’ referred to. Neither did it contain any analysis of emotional harm to the children if removed from their father’s care and where the balance of risk lay.
The court stated that the intervention required by HHJ Oliver was in relation to the children having unauthorised contact with their mother balanced with the proportionality of removing them from their father to meet the requirement.
It was concluded that HHJ Oliver had failed to apply the test for immediate removal correctly and that, had he done so, he would have reached the opposite conclusion.
The appeal was allowed, the interim care order set aside and the children returned to the care of their father.
