NEWTON AND LECKIE
[2024] NZHC 2861
•2 October 2024
THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED TO COMPLY WITH
S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE
FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-517
[2024] NZHC 2861
BETWEEN NEWTON
Appellant
AND
LECKIE
Respondent
Hearing: 24 September 2024 Appearances:
Appellant in person Respondent in person
Judgment:
2 October 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 October 2024 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
NEWTON v LECKIE [2024] NZHC 2861 [2 October 2024]
Introduction
[1] Lily is the five year old daughter of Ms Leckie and Mr Newton. In May 2023 Ms Leckie applied under s 46R of the Care of Children Act 2004 (CoCA) seeking the Court’s authority to immunise Lily in accordance with the Ministry of Health immunisation guidelines. Mr Newton opposed Lily being immunised.
[2] On 14 September 2023, Judge Duggan made a guardianship order authorising Lily to receive the immunisations recommended by the New Zealand Ministry of Health.1
The appeal
[3]On 20 September 2023 Mr Newton filed an appeal against that decision.
[4] At the time he did not realise that he needed leave to appeal. An application for leave to appeal was duly filed and, in a decision dated 7 December 2023, Eaton J granted leave to appeal, although observing that the grounds of appeal advanced did not appear to be strong.2
[5] The Judge identified that the grounds for seeking leave to appeal, as best as he could discern them, were:
(a)false statements and factual errors having been made by both counsel for the respondent and lawyer for the child in submissions advanced before the Family Court, and in the decision of the Family Court Judge;
(b)an allegation of bias said to be demonstrated by the Judge disregarding material advanced by the appellant and accepting submissions advanced on behalf of the respondent and lawyer for the child;
(c)a failure by the Judge to acknowledge that the evidence advanced by the appellant was “unique” to the parties’ child; and
1 Newton v Leckie [2023] NZFC 10492.
2 Newton v Leckie [2023] NZHC 3550 at [24].
(d)a failure by the Judge to have regard to Ministry of Health data specific to the child.
[6] In submissions subsequently filed, Mr Newton elaborated on these points, setting out 13 criticisms he had relating to the hearing process and the decision.
Relevant background
[7] It is not necessary, for the purposes of this appeal, to say much about the background to the application. Suffice to say the parties met [overseas] and Lily was born there. Mr Newton says that one of the things that he understood Ms Leckie and he were in agreement on, was not vaccinating their child. However, from Ms Leckie’s perspective, she says, while she was living with Mr Newton, she had “no choice but to comply with his desire to not have Lily vaccinated.”
[8] Just over a year after Lily was born, Mr Newton and Ms Leckie separated. Ms Leckie returned to [New Zealand] in May 2021 when COVID-19 border restrictions were lifted. Disputes ensued over parenting arrangements and proceedings were initiated in the Family Court seeking parenting orders under s 47 of CoCA. I understand these proceedings are still on foot.
[9] Prior to Lily starting school, Ms Leckie sought to have Lily vaccinated in accordance with the recommended schedule published by the Ministry of Health. Because Mr Newton was opposed to that, she applied to the Court for a direction under s 46R of CoCA authorising her to have Lily vaccinated.
The decision
[10] After hearing from the parties, the Judge issued an oral decision. She began by setting out the application being made by Ms Leckie and Ms Leckie’s reasons for bringing it. Specifically, Ms Leckie said that:
… having Lily immunised is in line with the health recommendations and will protect her from life threatening diseases and reduce the risks of complication should she become unwell with a disease she is immunised against.
Ms Leckie explained that she wanted Lily immunised before she commenced school and noted that “[h]aving Lily immunised also protects vulnerable members of our community.”
[11]The Judge then described the evidence filed by Mr Newton. This included:3
…articles, reports, email correspondence between the parties about immunisations, a criminal history for a company in the United States relevant to the broader topic of immunisation and an abstract on chickenpox, along with information from Medsafe about a particular vaccine, a link to an article from a New Zealand Government website as well as a list of doctors in the Nelson region.
[12] The Judge noted Mr Newton’s understanding that he and Ms Leckie had agreed not to vaccinate their child. In respect of the material he presented in support of his position she said she did not consider there was any medical evidence before the Court that “specifically considers Lily and any risk to her of being immunised. Put another way, there is no evidence that identifies that there are any contraindications specifically for Lily of being immunised.”4 The Judge then referred briefly to the report of lawyer for the child, Ms Lloyd, whose position was that, in the absence of any specific medical evidence about the risk for Lily of being immunised, she supported the application.
[13] The Judge reminded herself of the principles set out in ss 4 and 5 of CoCA, including the paramount obligation to consider the child’s welfare and best interests. In respect of the principle in s 5(a), which says that a child’s safety must be protected, the Judge considered this meant she had an obligation to consider Lily’s health and Lily’s safety in the context of this application. Given Lily’s age, the Judge did not consider it was appropriate to seek Lily’s views on this issue, noting she did not “yet have the ability to weigh up the advantages and disadvantages of immunisation and then make a considered decision about whether she should be immunised.”5
3 Newton v Leckie, above n 1, at [7].
4 At [10].
5 At [14].
[14] The Judge then considered a range of Family Court decisions on the question of whether a child should be immunised. She summarised the findings in those cases as follows:6
Generally, judges have been reluctant to direct that immunisation should not occur. The exception is when there is specific medical evidence identifying contraindications for the particular child who is the subject of the application, or the child is Gillick competent and has views about not being vaccinated.
[15] The Judge went on to say that, in general, “the best evidence before the Court is that children are protected from disease through the Ministry of Health recommended immunisation schedule”, and where a parent or guardian is opposed to vaccination, the usual approach is that they should provide credible evidence that the benefits of immunisation are outweighed by the specific risk to the child who is the subject of the dispute.7
[16] The Judge was then critical of the information supplied by Mr Newton because the information “is not specific to Lily and some has, since publication, been discredited.”8 The Judge observed that the Ministry of Health guidelines for immunisation were “based on a substantial body of medical evidence” and are intended to be “a set of recommendations for everyone”.9
[17] The Judge concluded that a decision permitting immunisation was “the right approach for Lily” who was about to start school and would be mixing with a large number of children and adults. It was also “in the interests of vulnerable members of our community”.10
[18] The Judge then imposed some conditions on the order authorising immunisation. These were, in summary:11
6 At [18], and noting that “Gillick competence” is a term derived from the House of Lords decision in Gillick v West Norfolk and Wisbech AHA [1986] AC 112 and refers to a child under 16 who is judged to have the functional ability to make a reasoned decision about their health or medical treatment.
7 At [19].
8 At [22].
9 At [23].
10 At [25].
11 At [26].
(a)that medical evidence should be obtained regarding the appropriate timing of the injections given that Lily had not previously been immunised;
(b)Mr Newton should not be present when she is immunised; and
(c)Mr Newton was to be kept up to date about the progress of immunisations.
The issues on appeal
[19] Mr Newton has expressed his grounds of appeal in different ways in various documents he has filed,12 but some general themes emerge as identified by Eaton J in his decision. To ensure I have considered each issue, I have focused on the 13 issues Mr Newton identified in his written submissions.
Was there bias and failure of due process in the lead up to the hearing?
[20] The first issue of concern to Mr Newton is whether “due process was followed by the Family Court in respect [to] scheduling [the hearing].” The date of 24 August 2023 was offered by the Deputy Registrar for the hearing but that date was declined by Ms Leckie and a hearing date of 14 September 2023 was offered instead. Mr Newton says he was not consulted on whether that alternate date was suitable. He said he had already advised he could not do a hearing in the week commencing 11 September 2023 and he did so again on 10 August. However, he says his 10 August 2023 communication was evidently ignored and not conveyed to a Judge.
[21] On 7 September 2023, the Deputy Registrar emailed asking whether Mr Newton was sure he could not make the 14 September date and Mr Newton says he responded saying “Per my emails 28th July and 10th August I am not available that week of 14th Sept”. However, the following day, on 8 September 2023, Judge Hunt sent a memorandum saying that Mr Newton had not given a reason for not being able to appear at the hearing and he could appear by AVL if necessary, so the hearing would
12 Being his notice of appeal, his memorandum and affidavit for case management conference for appeal, his interlocutory application for leave to appeal out of time, and in his submissions.
proceed. This was confirmed on 11 September 2023 in a minute from Judge Duggan who also noted Mr Newton had not given a reason for being unavailable on 14 September. Mr Newton says he had to cancel his commitment on 14 September in order to attend the hearing.
[22] He then says he only received submissions from Ms Leckie on 13 September 2023, at around 10.30 am and the report of lawyer for the child was emailed to him at around 1 pm on the same day. This gave him insufficient time to respond to those submissions.
[23] Given that sequence of events, Mr Newton queries whether due process was followed by the Family Court in respect of scheduling, whether bias was evidenced by Ms Leckie being granted the ability to refuse a date and him not being permitted to do the same, and whether the late receipt of submissions from Ms Leckie and the report from lawyer for the child contributed to an unfair and unjust hearing.
[24] Ms Leckie in response points to the fact Mr Newton gave no reason to the Court for being unavailable on 14 September. She also relies on the submissions which were filed on her behalf for the 14 September hearing which outlined the significant latitude that Mr Newton had been afforded by the Family Court, despite his non-compliance with directions. She points out that on 29 May 2023 Mr Newton was directed to file and serve any evidence within 28 days. He did not comply with this direction. On 18 July 2023 he was given a further 28 days to file his evidence. Again, he did not comply. On 15 August 2023 he filed several articles, but not in affidavit form as he knew was required. He was asked to re-file his documents in affidavit form but did not comply. On 5 September 2023 he was given a further three days to re-file his evidence and his evidence was subsequently filed on 8 September 2023.
Discussion
[25] The issues raised are clearly of concern to Mr Newton but nothing suggests that they were the fault of the Judge hearing the case. The earlier date was shifted because both counsel involved advised that they had prior hearing commitments. I accept it was unfortunate the Deputy Registrar did not check whether the date of 14 September 2023 suited all parties in the same way that the parties had been
consulted on the 24 August date. However, by the time the Judge was aware there was an issue (although she still did not know why Mr Newton did not want to proceed on that date), it seems there was little option but to proceed and Mr Newton was able to rearrange his commitments to attend Court on that date.
[26] In terms of the late receipt of the submissions for Ms Leckie and the report from the lawyer for the child, this is the logical consequence of the extremely late filing of Mr Newton’s evidence. Given he did not file his evidence until 8 September 2024, there was no real prospect that the submissions for Ms Leckie and the report for lawyer for child could have been filed any earlier. The latitude extended to Mr Newton in respect of his delays in filing evidence are the antithesis of bias against him.
[27] None of the issues raised demonstrate the Judge was biased against Mr Newton when reaching her decision, or that he was unfairly disadvantaged by the procedural and scheduling decisions.
[28]This ground of appeal is rejected.
Were there false allegations and misleading representations in submissions?
[29] Mr Newton submitted that a false portrait of him was painted in the submissions filed prior to hearing by using “derogatory wording and false speculation”. In oral submissions he explained that the submissions asserted that he had “strong beliefs” and “ideologies” and referred adversely to his “stress” and “mental health”, to paint a picture of him as dysfunctional.
Discussion
[30] I could not see those phrases used in the applicant’s written submissions that were before the Family Court, although the supporting affidavit of Ms Leckie did describe Mr Newton’s opposition to vaccines as “part of his ideologies.” The report of lawyer for the child does say that, if the decision was to immunise, this would be a difficult decision for Mr Newton to accept given his “strongly held beliefs and ideologies”.
[31] However, the term “ideology” is not a pejorative term. It is defined in the Concise Oxford English Dictionary to mean “a system of ideas and ideals forming the basis of an economic or political theory”, or “the set of beliefs characteristic of a social group or individual.”13 A system of ideas or beliefs can be positive or negative. Mr Newton clearly has strong views regarding vaccinations which he says are supported by the evidence he relies on. The submissions which referred to the strength of those views were not false. In any event, it is for the Judge to accept or reject the submissions which were made to her.
[32] To the extent Mr Newton says the submissions falsely painted a portrait of his “dysfunction”, again he did not point me to anything which was said which was demonstrably false. In oral submissions, he referred to criticism of him in the report for lawyer for the child for referring to his daughter as “property” and saying if she were vaccinated he could view her as “damaged property”.
[33] The concern arose out of communications sent to Ms Leckie in 2022 and 2023 regarding vaccination of Lily. Specifically, in an email dated 7 January 2022 he said that he “require that my property (my daughter Lily) is not subject to injections (vaccinations) nor is she subject to sticks up the nose (PCR tests or antibody tests);” In similar vein, in 2023, shortly before the hearing, he sent a communication to Ms Leckie where he described Lily as “the shared property” of Ms Leckie and him and referred to Ms Leckie’s “intent to do harm” to Lily, by vaccinating her. At the hearing he acknowledged that this was an unfortunate choice of words on his part, but said that the wrong meaning was taken from that.
[34] Again, nothing he pointed to satisfied me that false or misleading submissions were made by the other parties to the application.
[35]This ground of appeal is rejected.
13 Concise Oxford Dictionary (11th ed, Oxford University Press, Oxford, 2004).
Was undue weight given to the report for lawyer for child?
[36] Mr Newton says that undue weight was given to the report of lawyer for the child as it was “referenced several times during the hearing”, including early on when the Judge referred to paragraph 11 of the report which outlined suggested conditions of the order should the Judge decide the order sought should be made.
[37] Mr Newton repeats the criticisms discussed earlier regarding the use of the word “ideological” in the report and also says “[t]he report is written as if the determination has been made”.
Discussion
[38] However, this is to misunderstand, or misread, what is said at paragraph 11 of the report. The conditions proposed are provisional on the Court determining whether an order should be made. Lawyer for the child is not making the decision but simply submitting what she considers would be in the best interests of the child. As is normal, the lawyer has provided suggested conditions to an order should an order be made, to reflect the interests of the child. The Judge was entitled to put weight on this report and there is nothing to suggest this weight was undue or misplaced.
[39]This ground of appeal is rejected.
Did the Judge demonstrate “dislike” for Mr Newton which influenced the proceedings?
[40] Mr Newton asserts that the Judge was angered by him using first names and she “shut down” Mr Newton from thereon. From his perspective, the remainder of the hearing was “for show only”, with his input being minimal.
[41] Ms Leckie says the submission is entirely speculative. She reports that Mr Newton began by referring to the parties, including counsel, by their first names. The Judge asked how they would like to be addressed and they advised they would prefer to be addressed using their surnames. She says Mr Newton then continued to address them by their first names, which prompted a rebuke by the Judge.
Discussion
[42] It is understandable that the Judge would have reprimanded Mr Newton for not complying with the request to refer to the parties by their surnames during the hearing. However, that is insufficient reason to suggest that the Judge was biased or that the hearing misfired. There is no suggestion that Mr Newton did not have reasonable opportunity to make submissions in support of his position.
[43]This ground of appeal is rejected.
Did the Judge disregard Mr Newton’s spiritual beliefs?
[44] Mr Newton, in his written submissions, said the Judge disregarded his spiritual beliefs, being his opposition to “injecting aborted foetal cells … into his daughter”, saying that this was a breach of ss 10 and 15 of the New Zealand Bill of Rights Act 1990.
Discussion
[45] In response to my questions, Mr Newton properly acknowledged that foetal cells were not incorporated into vaccine as he had submitted but rather, in the vaccine manufacturing process, vaccine components are exposed to materials that contain DNA from cultured human cells or from animal derived ingredients. So, at its highest, fragments of such genetic material could be found in minute amounts in the vaccine.
[46] Mr Newton also did not identify what his particular spiritual belief was that he considered was undermined by vaccination, and I take judicial notice of the fact that none of the world’s major religions reject vaccination on such grounds. Without identifying the basis of his belief and how this relates to the correct factual position, there can be no criticism of the Judge for ignoring it.
[47]This ground of appeal is rejected.
Did the Judge err in disregarding Mr Newton’s report analysing Ministry of Health data?
[48] Mr Newton’s submissions relied heavily on a report he had prepared using Ministry of Health data to assess “Disease Severity, Incidents and Death Risk in New Zealand vs Vaccination Safety Data and Other Factors”. The report was a comprehensive, 58 page body of work which sought to identify the current risks of a New Zealander contracting a disease for which a vaccination is recommended, against the health risks identified by the manufacturers of various adverse events following immunisation (AEFIs) to those vaccines. Mr Newton then sought to drill down even further to quantify those risks for young people, in the zero to 14 year age group and, of European ethnicity, in order to make the report “Lily-specific”.
[49] In undertaking this task, Mr Newton used Ministry of Health data which, using the Institute of Environmental Science and Research (ESR) website, provided a statistical breakdown of notified cases of these diseases, according to the age group and ethnicity of the notified case.
[50]The overall tenor of the report was to show:
(a)cases of these diseases had been trending down over time due to improvements in standard of living and sanitation, and the number of deaths from these diseases had also reduced because of improvements in medical treatment, regardless of when the vaccination was introduced;
(b)the incidence of these diseases in New Zealand was, overall, very low and even lower for young healthy Europeans such as the couple’s daughter; and
(c)the risks of an adverse reaction to the vaccination, as documented by the drug manufacturers themselves, ranged from very common to rare, but in Mr Newton’s opinion, far outweighed the risks associated with contracting the disease.
[51] Mr Newton observed that those most at risk from contracting such diseases were infants under one year old or adults over 65, those with existing health conditions and comorbidities, those overweight, those from Pacific or Māori ethnicities, and or from low socio-economic environments. Lily, on the other hand, was in the lower end of risk categories. He therefore concluded that in light of the risk of someone with her profile of contracting the relevant disease, as opposed to the risk of her suffering an AEFI meant that, in each case, the vaccine posed “many magnitudes greater risk to Lily” than the relevant disease.
[52] Mr Newton submits that the Judge did not appear to have any regard to this evidence and yet nor did she determine it was inadmissible.
[53] In response Ms Leckie submits that although the evidence was allowed to be filed, this report and all the evidence filed by Mr Newton was objected to by her lawyer as containing inadmissible opinion evidence. Furthermore, the evidence was not specific to Lily and the Judge, quite rightly, gave it no weight.
Discussion
[54] This particular ground of appeal focuses only on the report prepared by Mr Newton, not on the balance of the evidence he relied on. The report was objected to by the applicant on the grounds “it is a statement of opinion about something that Mr Newton is not an expert in.”
[55] In order to be able to proffer an opinion as evidence in Court proceedings (other than opinions that are admitted under s 24 of the Evidence Act), the decision-maker must be satisfied that they are “likely to obtain substantial help from the opinion … in ascertaining any fact that is of a consequence to the determination of the proceeding.”14 Furthermore, if someone purports to give expert opinion evidence in civil proceedings (as Mr Newton purports to do here), they must comply with the applicable rules of Court.15 These include r 9.43 of the High Court Rules 2016 (the Rules) which provides that an expert witness must comply with the code of conduct
14 Evidence Act 2006, s 25(1).
15 Evidence Act, s 26.
set out in sch 4 to the Rules. These require the expert witness “to assist the court impartially on relevant matters within the expert’s area of expertise”16 and the expert witness must not be “an advocate for the party who engages the witness.17
[56] An expert witness must, in accordance with the code of conduct, comply with its requirements, which include identifying the witness’s qualifications, the facts and assumptions on which the witness has relied, the reasons for the witness’s opinion and any other literature or other material relied on.18 These requirements allow the opposing party in the Court to evaluate the expert’s expertise and opinion, initially for admissibility and ultimately for weight.
[57] While Mr Newton asserts he is sufficiently academically qualified to analyse the data in the report and the state opinions on it, it does not appear that he has previously advised the Court what his qualifications are. In response to my questions, he advised me that he had a degree in mechanical engineering, with honours, from Curtin University, Perth, and a graduate degree in environmental management from the University of New South Wales. These are not relevant qualifications to proffer an opinion on epidemiology and statistical risk (leaving aside questions of whether Mr Newton is appropriately impartial), and I do not consider he is appropriately qualified to give opinions which are contained in his report.
[58] I now turn to whether there is any aspect of Mr Newton’s report which could be considered to assist the Court.
[59] As a starting point, I consider there can be no objection taken to reliable statistical data being referred to and relied on in submissions, including Ministry of Health data as to number and breakdown of cases of a notifiable disease, nor can there be an objection to reliance on the manufacturer’s assessment of the likelihood of AEFIs. It may also be possible for a party to make submissions relying on such statistics if they involve simple references to them without further analysis.
16 High Court Rules 2016, sch 4, cl 1.
17 Schedule 4, cl 2.
18 Schedule 4.
[60] However, here, I consider Mr Newton has endeavoured to do much more than this and, as already noted, he has ventured into areas which he is not qualified to comment. But more fundamentally he has not accurately reported or used the data he relies on.
[61] By way of example, I looked at his analysis relating to hepatitis B infections. Mr Newton’s report advised there had been “a total of 14 cases over 20 years from 2000 to 2019 across all age groups.” When I looked at both the Ministry of Health data and the ESR data, as referenced by Mr Newton, that statement was not correct. First, he needed to distinguish between acute Hepatitis B (which is a notifiable disease) and chronic hepatitis B virus (HBV) infections (which are not). In the 2019 ESR report he relies on, the graph for the 2000–2019 period shows the number of notified cases of acute hepatitis B varied from nearly 80 in 2000 to 28 in 2019.19 Given there is an average of more than 40 cases per year in that period, Mr Newton’s statement that there is less than one case per year is plainly incorrect.
[62] He then uses the rates for chronic HBV infections as opposed to a acute hepatitis B infections to work out the risk of a European, such as Lily, contracting HBV. The Ministry of Health website reports that there are around 120,000 people in New Zealand living with chronic HBV infection and, based on 2016 data, around 1,000 new cases are diagnosed each year nationally.
[63] While Mr Newton has correctly reported the rates of chronic HBV infection amongst Chinese, Pacific and Māori people found following screening undertaken in the North Island of New Zealand, along with the estimated prevalence rate of one per cent in Europeans, he then wrongly translates that as meaning only one per cent of the notified cases of acute hepatitis B occurs in the European population. That is plainly incorrect. What it means is that there is an estimated prevalence rate of chronic HBV in one per cent of the European population in New Zealand i.e. one person in 100. Consequently, Mr Newton’s conclusion that Lily’s risk of contracting hepatitis B is one in 78,570,000 is wrong by many multiples.
19 The report also notes that in 1984 609 cases of acute Hepatitis B were noted but the number decreased when the Hepatitis B vaccination was introduced to the immunisation schedule in 1988.
[64] I point out these errors in the use of the reported statistics, not to be critical of Mr Newton, but to show why the Court is so careful about what expert evidence it determines to be admissible. While Mr Newton is able to point to statistics reported in reputable sources, which can be accessed and checked by the decisionmaker, he does not have the expertise to then analyse these statistics and proffer an opinion in reliance on that analysis.
[65] I also point out that his report is unable to provide any meaningful assessment of risks of vaccination for Lily. Many of the AEFIs reported by the drug companies are temporary and expected, such as tenderness and swelling at the site of the vaccination. Rare AEFIs are defined as events that occur in less than one in 10,000 cases, but they may in practice, occur far more rarely than that. The risk is not, therefore, quantified in the same way as the occurrence of a disease can be quantified. Furthermore, despite Mr Newton insisting that his report was “Lily specific”, he does not (nor could he) analyse whether Lily’s risk of suffering a serious AEFI was considerably less, or more, than the risk in the overall population.
[66] For all these reasons, I am satisfied that the report comprised inadmissible opinion evidence which did not (and could not) assist the decisionmaker, and the Judge was correct to take no account of it.
[67]This ground of appeal is rejected.
Should the Judge have disregarded Mr Newton’s request for Ms Leckie to provide evidence regarding the safety of vaccines?
[68] Both in the original hearing and on appeal, Mr Newton submitted that the onus should have been on Ms Leckie to prove the safety of the vaccines. However, in her judgment the Judge rejected this, saying that the “Ministry of Health guidelines for immunisation are a set of recommendations for everyone. They are based on a substantial body of medical evidence.” The Judge accepted that the Court must still look at the individual case but, in that regard, “if a parent or guardian is opposed to vaccination, they need to satisfy the Court with credible evidence that the benefits of immunisation are outweighed by the specific risk to the child who is the subject of the dispute.”
Discussion
[69] As the Judge identified, there have been a number of Family Court decisions which have had to address the question of whether a child should be vaccinated when there is the dispute over this issue between guardians.20 While the majority of cases referred to did direct that vaccination proceed in accordance with the Ministry of Health guidelines, as Mr Newton pointed out, they did not all do so. Some deferred the decision pending provision of a medical report under s 133.21 There was also a case where a child, who was already 85 per cent immunised, was not required to be further immunised, noting the “mother had a good understanding of the benefits and risks of immunisation”.22 However, the vast majority of the cases did order routine vaccinations to be given.
[70]I take the following principles from those decisions:
(a)In A v I, the Family Court rejected the submission that the guardian who seeks to have a treatment option preferred by the Court that is against conventional medical advice bears the onus of proving that their decision should be favoured.23 Instead, as Judge Parsons said:24
The Act is clear that all decisions made for children have to be analysed on a individualised paradigm inclusive of set mandatory statutory considerations within the overarching lens of the welfare and best interests of the child.
(b)The Court will obtain little assistance from generalised evidence regarding the benefits and risks of vaccination. The concerns need to be linked to the specific vaccinations the children will be receiving and to the specific concerns and risks for that particular child.
20 B v B [2019] NZFC 7530; Aguilar v Aguilar [2019] NZFC 7525; [N] v [N] [2015] NZFC 3462;
DDS v HKS [2014] NZFC 3228; F v N [2018] NZFC 6778; Lawson v Pugh [2019] NZFC 5092;
McLaughlin v McLaughlin [2019] NZFC 7206; M v N [2017] NZFC 2358; D v H [2015] NZFC
6950; A v I [2017] NZFC 3198; and Chief Executive of Oranga Tamariki v M [2019] NZFC 10804.
21 Lawson v Pugh, above n 20; and Reid v Graham [2019] NZFC 900.
22 DDS v HKS, above n 20.
23 A v I, above n 20.
24 At [32].
(c)Judicial notice may be taken of the fact that the Ministry of Health has made recommendations for a course of vaccinations based on the medical evidence available to it.25
(d)The analysis is, in the end, one of weighing up the pros and cons of vaccination for the particular child or children in question.
(e)In the absence of specific evidence to suggest why the Ministry of Health recommendations for vaccinations ought not to be followed for the particular child or children, this would weigh in favour of vaccination in accordance with those recommendations being ordered.
(f)Where there is a potential concern about the risk of vaccination to the particular child but insufficient evidence before the Court to assess that risk, the decision as to vaccination could be deferred to obtain that evidence, for example, through a medical report obtained pursuant to s 133 of CoCA.
[71] In the present case, the Judge accepted that she was required to consider whether the decision to vaccinate a child was in the “best interests of the individual child in his or her own circumstances”. The Judge took into account the Ministry of Health recommendations, and I am satisfied it was appropriate for her to do so noting that the Ministry’s statutory function is “improving, promoting, and protecting public health”.26 In this case, there was no evidence whatsoever, that Lily was at particular risk from the proposed vaccinations. Indeed, Mr Newton frequently alluded to the fact that she was in “excellent health”. In the absence of any evidence to suggest Lily was at particular risk from being vaccinated, and in light of the identified benefits both to Lily and to the community of her being vaccinated, the Judge was satisfied that vaccination should be directed in this particular case.
[72] I am satisfied that the Judge’s approach was correct and the Judge took account of all the evidence before her. Ms Leckie relied on the Ministry of Health’s
25 Stone v Reader [2016] NZFC 6130 at [21].
26 Health Act 1956, s 3A.
recommendations. In this case, in the absence of any reliable evidence to suggest the risks outweighed the benefits to Lily the Judge was entitled to conclude vaccination was appropriate for Lily.
[73]This ground of appeal is rejected.
Did the “ambush with regards time to respond” exclude an opportunity for fair response pre-hearing?
[74] This ground of appeal is connected to the first ground of appeal and repeats the submission that he did not have a fair opportunity to respond to counsels’ submissions.
[75] However, as I have already explained, the late filing of the applicant’s submissions and the report for lawyer for the child was a natural consequence of the late filing of Mr Newton’s evidence. While Mr Newton baldly asserted that he could have responded to some of the matters raised in submissions, he has not applied for leave to adduce further evidence in this hearing, nor has he identified any fresh evidence that would be material to the outcome of the decision.
[76]This ground of appeal is rejected.
Was the Judge right to disregard Mr Newton’s personal experience with children with autism?
[77] Mr Newton submitted that one of his two nieces is autistic and he links this to receiving her childhood vaccinations. He also has a friend, who has an autistic son, which she linked with childhood vaccinations. Mr Newton submits that these life experiences were relevant to the Court’s decision.
Discussion
[78] As discussed with Mr Newton, his personal belief, or that of his friend, that autism was caused by vaccination constitutes inadmissible opinion evidence. A lay person’s opinion on the causes of disease is not an opinion which meets the threshold under s 25 of the Evidence Act of being likely to provide the decisionmaker with substantial help in determining the application. Only rigorous peer-reviewed medical
studies that are able to demonstrate causation, and not simply correlation, would suffice to assist the Court on this issue.
[79]This ground of appeal is rejected.
Was it reasonable for Ms Leckie to dismiss an article Mr Newton relied on, when he had no time to respond?
[80] Ground 10 relates to ground one and ground eight and again repeats the assertion that Mr Newton did not have time to respond to Ms Leckie’s lawyer’s submission that the Judge should discredit a research paper which showed that rates of doctor visits for the vaccinated were higher than for unvaccinated persons over time.
Discussion
[81] I reiterate the lack of time to respond was created by Mr Newton’s own defaults in filing his evidence in a timely way. There is no evidence that the Judge placed any weight on this submission and so there is no likelihood that the ability to respond to it would have affected the outcome.
[82]This ground of appeal is rejected.
Was it reasonable for the Judge to say there was “substantial body of medical evidence” in support of vaccination when there is “nil evidence of health outcomes being better for vaccinated children”?
[83] This is not a submission which goes to a step in the Judge’s reasoning process but rather challenges the overall reasonableness of the decision. In effect, Mr Newton is suggesting that the Ministry of Health immunisation guidelines were not based on any medical evidence whatsoever. That is plainly unsustainable.
[84]This ground of appeal is rejected.
Was the Judge right to disregard Mr Newton’s view that vaccinating your child does not protect others?
[85] Mr Newton submitted that it was false to suggest, as the Judge did, that a benefit of vaccination is that it assists in protecting the wider community. When
questioned, Mr Newton accepted that “herd immunity” can theoretically be achieved through vaccination. That is, when a sufficient percentage of the population are vaccinated, outbreaks of the disease are unlikely, thus protecting the whole population, whether vaccinated or not. He clarified that what he was saying was that, because vaccination efficacy wanes over time, and there is a reducing number of people getting vaccinated, achieving percentages of vaccinated people which would be sufficient to protect the population overall, is no longer feasible.
Discussion
[86] Again, I consider Mr Newton ventures into expressing opinions which he is not qualified to make. It is widely accepted that high levels of immunisation can protect the population from outbreaks of disease, and the greater the percentage of the population which is vaccinated, the more likely this is to be true. That said, the degree of “herd immunity” generated in respect of any particular vaccine will depend on a range of factors, including the rate of vaccination, the efficacy of the vaccine and the length of time the vaccine provides immunity. Mr Newton’s bald statement that it is false to say vaccination protects other members of the public was appropriately given no weight by the Court.
[87]This ground of appeal is rejected.
Was the Court right to disregard Mr Newton’s evidence regarding pharmaceutical companies being involved in criminal law suits?
[88] Mr Newton was critical of the Court for rejecting his evidence that pharmaceutical companies had been involved in law suits, saying “[i]s it not sensible to question a vaccine manufacturer with a criminal record[?]” He was also critical of such companies operating on what he described as a “business model based on selling more product and which has nil liability”.
[89] However, on questioning Mr Newton, he could not point to any specific evidence of criminal activity that went directly to the safety and efficacy of the vaccines that the Ministry of Health recommended for New Zealand children.
[90] In the absence of any evidence which is directly relevant to that issue, the Court properly disregarded that evidence.
[91]This ground of appeal is rejected.
Result
[92] None of the grounds of appeal raised by Mr Newton satisfy me that the Judge’s decision was wrong or should be revisited on appeal.
[93] The Judge’s approach to whether Lily should be vaccinated was consistent with decided cases and reflected the correct approach to be taken under CoCA. Mr Newton did not adduce admissible evidence which would suggest that vaccination would not promote Lily’s welfare and best interests.
[94]Accordingly, the appeal is dismissed.
Costs
[95] While Ms Leckie appeared without counsel at the hearing, she had counsel assisting her in the early stages of the appeal, including on the application for leave to appeal. Ms Leckie seeks costs for all steps taken in these proceedings with the assistance of counsel.
[96] It is appropriate that 2B costs are awarded to her for all steps taken while counsel were acting for her, and I do so.
[97] If the quantification of costs on that basis cannot be agreed, then Ms Leckie is invited to file a memorandum setting out her calculation of costs on that basis within 20 working days of the date of this decision. If Mr Newton objects to that calculation he must file any response within a further 10 working days. Costs will then be quantified on the papers.
[98] Costs are to be met, in the first instance, from the sum paid into Court by Mr Newton as security for costs. If that is insufficient, he is to meet the balance. If
costs are less than that amount, then the balance, after payment of Ms Leckie’s costs, can be released to Mr Newton.
Copy to: Mr Newton Ms Leckie
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