Judge rules girl must get measles vaccine
Decision goes in father’s favour in case that pitted 10-year-old’s parents against each other
The mother had plenty of arguments as to why her 10-year-old daughter should not receive the measles vaccine, ranging from “most diseases today are very rare” to “unmistakable links” between vaccines and severe reactions.
Problem was, Brantford Superior Court Justice R. John Harper wasn’t buying any of it.
He recently ruled that the girl, whose identity is protected by a publication ban, be given a vaccination for measles, mumps and rubella, or whatever else her family doctor recommends, prior to her trip to Germany later this month to visit extended family.
By ruling that vaccination is in the best interests of the child, Harper was siding with the girl’s father, who is separated from the mother and shares joint custody, as well as with the overwhelming scientific evidence that has proven the effectiveness and extremely low risk of the measles vaccine.
“The parents are at the extreme end of high conflict and their positions relative to the issue of vaccinations is equally polarized,” Harper wrote.
“The tragedy in such circumstances is that the child is placed in the middle of parents who she deeply loves. The parents have discussed the issues with the child and it is my view that no 10-year-old child should be put in a position such as the child in this case.”
The April 10 decision comes amid a recent measles outbreak that swept through North America, including Ontario, which Harper acknowledged “is at the centre of the controversy before this court.
“This case shows the courts sensibly disdain those with a blind spot for science, whether it be denying that vaccines work, or denying that the Earth is round,” said Amir Attaran, a law and medicine professor at the University of Ottawa.
The parents’ names are also covered by a publication ban to protect the identity of their daughter. The father represented himself in court.
“This decision is an offence to the administration of justice,” the mother’s lawyer, Gloria Ichim, told the Star in an email.
“It is unprecedented for a court to order that vaccines should be administered or that they are in the best interest of the child. To vaccinate or not is a medical conclusion that should be made by the patient in consultation with their medical professionals, NOT imposed by the court.”
The parents had a consent order that gave them joint custody and “included a term that the parents had agreed to not vaccinate their child before she reached 12 years of age,” the ruling says.
The order, which Harper said “does not reflect any reasoned analysis,” went on to say that the girl could make her own decisions on vaccinations upon reaching the age of12. The father said he only agreed to the order to end the litigation around separation and custody, according to the decision.
The case raised a number of issues, Harper wrote, including the degree of input a child should have in making her own medical decisions. He said it also “highlights the polar opposite positions” of those who refuse to vaccinate their children under any circumstances and those who feel it is necessary to prevent the spread of a disease.
Harper wrote that the mother is “an adherent to the homeopathic approach to health and treatment,” who brought in two of what he described as “alleged experts” to back up her claims that vaccines are harmful.
The mother’s arguments, which she said in her affidavit are “key indisputable facts,” included:
“There are unmistakable links between vaccines and severe reactions, including SIFS, autism, meningitis, joint pain and fibromyalgia.”
“Most diseases today are very rare or are considered mild.”
“Most diseases were due to conditions of overcrowding, lack of sanitation and poor hygiene — all of which are not a risk today.”
The mother also put forward that her daughter was afraid of vaccinations because she became “aware” at age 8 that her pet cat had died as the result of a vaccination. This led Harper to also order that the mother “is not to communicate with the child in a manner that would be negative to the child receiving the vaccinations.”
When parents are fundamentally at odds with each other, the best interests of the child will almost always trump everything else in court, said Trudo Lemmens, the Scholl Chair in Health Law and Policy at the University of Toronto’s faculty of law, who called Harper’s decision “reasonable.
“(Parents) do have discretionary powers within the realm of reasonableness, but if their decision-making creates a significant risk to the child, the judge has to act on the child’s best interests,” he said.