A mother who objects to her son getting his MMR and 4-in-1 booster shots has lost a Supreme Court constitutional challenge aimed at preventing them from being administered.
The five-judge court unanimously ruled that the mother, who was not married to the child’s father, does not have superior constitutional rights requiring that her opposition to the jobs take priority over the father’s support for them.
Her claim of an effective “veto” over vaccination would, if upheld, set at naught the father’s rights and status as his son’s legal guardian, Mr Justice John MacMenamim said. She also had no veto on grounds of the constitutional protection afforded to a “family” because such protection is based on the family “as established by marriage”.
In the circumstances of this case, where both parents were actively involved in the child’s life, neither had some pre-determined constitutionally protected veto in applications of this type.
The dispute was between two unmarried guardians and the central issue was the child’s welfare, he stressed.
The mother is strongly opposed to the vaccines on grounds of the substances involved. The MMR is administered to protect against measles, mumps and rubella while the 4-in1 relates to diphteria, whooping cough, polio, and tetanus.
The boy, born in 2007, is now aged six. His parents, who were in a relationship for nine years, have been estranged since 2009.
The child received some vaccines after birth without dispute and no adverse reactions, it was previously said.
The district court, on the father’s application, in 2012 ordered the vaccinations be administered on grounds they were in the best interests of the child. After the circuit court rejected the mother’s appeal, she appealed to the High Court which, in dismissing her appeal, relied on the principle of best interests of the child.
She represented herself in the High Court but was legally represented for her Supreme Court appeal. The court made no costs order.
The judge said the nub of the appeal was the mother’s argument she could stop the vaccinations because of her unenumerated rights as a mother under Article 40.3 of the Constitution. That point was central but was not adequately pleaded, he said, and having analysed the arguments advanced, he dismissed that claim.
In the circumstances, while not coming within the constitutional definition of “family”, they had almost all the characteristics of a constitutionally protected family, the judge said.
The father continued to be involved in his son’s life after the break up and, on consent of the mother, secured a district court order in 2009 making him guardian and giving him “extensive rights of interest and concern”.The father also abided scrupulously by his duties regarding access and maintenance and the mother and father enjoyed shared custody.
As an appeal against the High Court’s dismissal of a challenge to the children’s referendum is pending, the judge added the Supreme Court could not have regard to the provisions of the proposed amendment.
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