HARCOURT CHAMBERS OXFORD FAMILY LAW MOOT 2022

IN THE COURT OF APPEAL, CIVIL DIVISION

ON APPEAL FROM THE HIGH COURT (MR JUSTICE JABBER)

BETWEEN:

MR AND MRS NOVACK

Appellant Parents
and

BARSETSHIRE COUNTY COUNCIL

Respondent Local Authority

MOOT PROBLEM

Factual Background:

Mr and Mrs Novack are the parents of two minor daughters: Anya (aged 14) and Bonnie (aged
3). They also have two adult children.

In September 2021 Barsetshire County Council issued care proceedings in relation to Anya and
Bonnie due to concerns about physical and emotional abuse. In particular, there was evidence
from multiple sources that Mr and Mrs Novack subscribe to a disciplinarian parenting style
where, upon a child reaching the ‘age of reason’ (which they deem to be 7 years of age), they
implement a strategy of extreme physical chastisement in an attempt to procure absolute
obedience.

At the initial hearing on 30th September 2021, the Family Court granted an Interim Care Order
in relation to Anya approving the Local Authority’s plan to accommodate her in foster care,
where she has remained to date. In relation to Bonnie the Court granted an Interim Supervision
Order with the affect that she remains in the care of her parents during the proceedings. A
finding of fact hearing is listed to commence in March 2022 to determine the nature and extent
of the alleged physical and emotional abuse.

Anya is a highly intelligent and articulate child and within the care proceedings has been
considered Gillick competent to instruct her own solicitor. She does, however, experience some
emotional difficulties and receives support from Child and Adolescent Mental Health Services
(CAMHS). The causation of her difficulties is disputed and whether they are attributable to the
parenting she has received is yet to be determined.

In the course of its involvement the Local Authority discovered that neither child had received
the MMR vaccination. The Local Authority obtained medical advice on this issue from the
Community Paediatrician, Dr Needell, who advised that “both children are at increased risk
of infection, could become very unwell, and these infections can cause death. The absence of
immunisation against Rubella also carries with it, for girls, the risk of complications and birth
defects in pregnancy”.

The Local Authority accordingly sought to obtain the parents’ agreement to MMR vaccinations
for both children. The parents categorically refused to consent on the basis of religious/ethical
objections to the Rubella element of the vaccination. Both parents are devoted Christians and
have strongly held anti-abortion views. They consider that the MMR vaccine is objectionable
because fetal stem cells were used in its development and production.

The Local Authority social worker also spoke to Anya to canvass her views about having the
MMR vaccination. Anya told her social worker that she would prefer not to have it because
she holds ‘pro-life views’.

Anya’s psychiatric nurse at CAMHS has shared that Anya is “petrified” of receiving the
vaccination and has expressed the professional opinion that if Anya receives the vaccination,
it is likely to precipitate a short-term deterioration in her mental health.

The Local Authority progressed the issue of vaccinating the children as follows:

• In relation to Anya (for whom it has Parental Responsibility by virtue of the Interim
Care Order) it served notice upon Mr and Mrs Novack that, unless they issue an
application to try to prevent/injunct it within the next 14 days, it would proceed to
authorise Anya having the MMR vaccination.

• In relation to Bonnie, it issued an application (including an application for permission

to apply) for a Specific Issue Order to compel the parents to authorise and facilitate her
having the MMR vaccination.

Within the 14 day notice period Mr and Mrs Novack duly lodged an application to invoke the
inherent jurisdiction of the High Court and/or for alternative injunctive relief to prevent the
Local Authority from authorising vaccination of Anya.

Both parties’ applications were consolidated in the High Court and came before Mr Justice
Jabber for determination.

Decision of the High Court Family Division (Mr Justice Jabber)

At first instance Jabber J decided:

- The Local Authority is granted permission to apply for a s.8 Specific Issue Order in
respect of Bonnie;

- The Local Authority is granted a Specific Issue Order in respect of Bonnie that Mr and
Mrs Novack must take all relevant steps in cooperation with the Local Authority and
NHS to facilitate and enable Bonnie to receive the MMR vaccination as soon as
possible;

- Mr and Mrs Novack’s application to invoke the inherent jurisdiction and/or for
alternative injunctive relief to prevent the Local Authority from administering the
MMR vaccination to Anya is refused.
In the course of judgment, Jabber J made the following determinations and comments:

- It is plainly in the welfare interest of both children to be vaccinated as soon as possible.

- Anya is Gillick competent on the issue of the MMR vaccination, but her views should
be overridden.
- The Local Authority should arrange and consent to Anya being administered the MMR
vaccination pursuant to its existing powers under s.33 CA 1989.

The Appeals:

Mr and Mrs Novack appeal against the first instance decisions in relation to both Bonnie and
Anya as follows:

1. The Judge was wrong to grant a specific issue order in respect of vaccination of
Bonnie:

(a) the Court was wrong to grant the Local Authority permission to apply for a
s.8 CA 1989 Order;

(b) the Court was wrong to grant the substantive specific issue order pursuant
to s.8 CA 1989. The Local Authority’s application should have been made
pursuant to the inherent jurisdiction.

(c) in any event, the order amounts to a disproportionate interference by the

state with the parents’ Article 8 right (to family life) and Article 9 right (to
religious freedom).

2. The Judge was wrong to refuse the parents’ application to prevent vaccination of
Anya on the following basis:

(a) Having concluded that Anya was Gillick competent the Judge failed to then
take properly into consideration her refusal to consent to vaccination.

(b) The Judge failed to take properly into account the likely psychological
impact upon Anya of receiving the vaccination contrary to her wishes and
beliefs. Had he done so, he would have concluded that the individual
circumstances render this a ‘grave’ decision for Anya.

(c) This is a case where the strength of the parents’ views does have a real
bearing on Anya’s welfare (per para 104(iv) of Re H) and the Judge failed
to take this into account.

NB:
A few days after the decision of Jabber J is handed down, Anya shows her social worker a text
message that she received from her parents a month ago which says “if you receive it you are
complicit in murder and will go to Hell”. Anya says that she did not tell her social worker about
this message previously as she was afraid of how her parents would react.
 - The respondent Local Authority will seek permission to rely upon this text within the
appeal.
- Those representing the appellant parents may, in their discretion, chose to oppose or
not oppose the introduction of this new evidence, which they may (or may not) wish
to pray in aid of ground 2(c) above.

Essential Reading:

• Children Act 1989 - Sections 8, 10, 31, 33, 38 and 100

• Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664

• Re C (Looked After Child)(Covid-19 Vaccination) [2021] EWHC 2993 (Fam)

• Article – Parental responsibility, vaccinations, and the role of the court, L.Q.R. 2020,
136(Oct), 559-563

• Factual information as to the ingredients of the MMR vaccination and link to the
Vatican’s statement on the issue of fetal stem cells: https://vk.ovg.ox.ac.uk/vk/vaccine-
ingredients#Human%20cell%20strains