The immunization of children in family break-down: Questionable evidence and conceptual shortcomings in A.P. v L.K.

Abstract

The Canadian case of A.P. v L.K. began as a garden-variety family arbitration, which turned on the arbitrator’s articulation and application of the ‘best interests of the child’, but is relevant to responsible practice at the nexus of family and medical law, and is significant to the practice of arbitration – specifically the certification of expert medical witnesses – and to the realization of individual (child) and public health. This case involved an ‘expert’ witness whose evidence contributed to an award directing that the children of the marriage need not be vaccinated. In addition to relying on an inappropriately woolly and narrow conception of ‘best interests of the child’ (a matter of concern to both family and health lawyers), the arbitrator provided a legitimizing platform for, and accepted the questionable evidence of, a politically motivated expert (a matter of concern to lawyers interested in natural justice and the integrity of adjudicative processes). The case is, therefore, a stark example of how (public) health can be undermined and family law warped to a political end, and it, therefore, deserves our close attention, not least for its seemingly unexamined acceptance of unfounded claims and pseudo-science. After briefly reciting the various demands in the case, this article outlines the disposition of the case, and then examines in detail the handling of the vaccination dispute, which, it is argued, was unsupported and unreasonable, offering suggestions about how to avoid similar outcomes in the future.