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Judge Rules Child Must be Vaccinated


tropaka

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http://www.thestar.com/life/health_well ... ishes.html

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.â€

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.â€

“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.â€

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 of 12. 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:

“Most diseases today are very rare or are considered mild.â€

“There are unmistakable links between vaccines and severe reactions, including SIFS, autism, meningitis, joint pain and fibromyalgia.â€

“Most diseases were due to conditions of overcrowding, lack of sanitation and poor hygiene — all of which are not a risk today.â€

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.â€

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.â€

“(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.

Contrast this decision with one in the same area where parents were allowed to administer "traditional" native treatments (which turned out in their case to be a stay at a quack clinic in Florida), instead of chemo. The child has since died.

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It's a very murky field for a reason. Complicated less, perhaps, because she's travelling overseas. There is a lot of precedent for taking over the care of children who are in danger - I remember a case about ten years ago in Vancouver with sick sextuplets whose parents were JWs and the kids needed a blood transfusion. The province ruled in favour of the children's health, even taking temporary custody. But it is always a complicated issue. And ultimately I don't know if (in the case of vaccines) we can go that far.

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If I understand this correctly, the parents separated but signed an agreement that the child would not be vaccinated. Now the father wants to take the child to Germany and it must be that a vaccination is required for travel. Obv the mother pitched a fit against the vax.

The father wants out of the agreement he signed. How binding can that be? It's not a contract.

I'm sure the mother is hurt and upset about all of this, and it cannot be good for the child either. Kid is caught in the crossfire of the parent's relationship. High conflict divorce :(

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It's a very murky field for a reason. Complicated less, perhaps, because she's travelling overseas. There is a lot of precedent for taking over the care of children who are in danger - I remember a case about ten years ago in Vancouver with sick sextuplets whose parents were JWs and the kids needed a blood transfusion. The province ruled in favour of the children's health, even taking temporary custody. But it is always a complicated issue. And ultimately I don't know if (in the case of vaccines) we can go that far.

Except that in this case, the father wanted her vaccinated. This case is only partially about vaccines. It's really about how decisions are made when parents with joint legal custody can not agree.

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Yes it is a custody case not a child protection case. The judge was able to act because the father wanted the vaccination.

Any previous court order can be reviewed if there is a question of whether it is in the best interests of the child. In a case where parents with joint custody disagree judges generally go with accepted expert opinion.

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BTW, thanks for pointing out this case. Since it is a local (to me) family law case, it's actually really relevant and deals with a number of legal issues that I need to follow.

I clicked through to the case itself. One interesting part is that the judge initially had 2 parties without lawyers, who had no idea how to submit proper evidence (ie. not newspaper clippings or stuff from the web), and he appointed a very well-known family lawyer to help put proper evidence together in the interests of the child. He also does a great job of going through and explaining exactly what does and does not constitute expert evidence, and pretty much demolishes the anti-vaxxers. Here's a great excerpt:

Many of the assertions as set out above were backed up by citations from individuals who were advocates of no vaccinations. Dr. Suzanne Humphries, MD and Roman Bystianyk’s web site and articles on “Dissolving Illusions†amounted to much of the corroborating literature cited by Ms. Willem. I find that the data relied on by those offered as experts by the mother amounted to a cherry picking of resources derived from anti vaccination advocates. This form of evidence offered as expert evidence does not amount to evidence from a person with special skills who can assist the court in drawing a conclusion that it could not otherwise make.

[71] The second alleged expert filing an affidavit in support of the mother’s position is Nicole Marie Lederman. She is a Doctor of Chiropractic. She states in her affidavit that she knows the mother in a professional capacity through loaning her educational materials related to children’s health and vaccinations. She states that she was asked to provide a “review of the literature regarding measles and the MMR vaccine.†Ms. Lederman states that the information she provides is based on her personal and professional knowledge. She does not explain how being a chiropractor provides her with professional knowledge on the issue of vaccinations and communicable diseases. I find that much of the material she presents in her affidavit is a recitation of personal studies that she has engaged by reading publications “that I consider to be from a scientific source that is credible and reliable.â€

[72] The above noted introduction of Nicole Marie Lederman goes more to describing a person who is has a bias and sets out to support her position by selectively picking publications of only those who support the position she has started with. Her affidavit further confirms this.

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  • 2 weeks later...

Understand too that in Canada, Superior Court judges have massively more power than a provincial court judge (like the traditional treatments ruling judge), and generally, provincial court judges mostly do criminal cases. Superior court judges generally have broader law experience.

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Understand too that in Canada, Superior Court judges have massively more power than a provincial court judge (like the traditional treatments ruling judge), and generally, provincial court judges mostly do criminal cases. Superior court judges generally have broader law experience.

Thanks for the reminder. I don't do much provincial court work anymore (most of my cases are in our local Family Court, where I don't need to worry about the distinction).

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Thanks for the reminder. I don't do much provincial court work anymore (most of my cases are in our local Family Court, where I don't need to worry about the distinction).

Oh... it wasn't directed at you specifically. I know you're an LSUCer like me and figured you already knew.

I pretty much only do OCJ work. :)

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