mRNA parental disputes: Is the Family Court fit for purpose?

If there was one state institution where New Zealanders would expect government dictates to be closely scrutinised and tested, it would be the courts.

Many parents involved in Family Court mRNA disputes, however, are learning that in fact, the opposite is true. Far from scrutinising and testing Medsafe’s or (until recently) Dr. Bloomfield’s claims about the mRNA injection of children, judges, particularly in the Family Court, are rubber stamping them.

mRNA cases – a background

In making decisions about whether a child should receive the Pfizer mRNA vaccine, judges will weigh up a number of factors to determine whether it is in the best interests and welfare of the child concerned. An important factor is the child’s wishes. The weight a judge will give those wishes will depend on the child’s age, understanding, intelligence and maturity. Generally, the older and more intelligent the child, the more likely a judge is to give effect to their wishes.

For younger, less articulate children, it’s a foregone conclusion they will be ordered to receive a vaccine, in the absence of expert medical opinion advising otherwise. This is because the ‘default position’ in the Family Court is to accept the government’s dictates on vaccines as gospel. While this may have been warranted in pre-COVID times with the tried and tested ‘traditional’ vaccines on the Childhood Immunisation Schedule, the fact that judges are extending this recognition to novel mRNA vaccine technology, whose long-term effects are unknown, simply because that Pfizer product has been given emergency approval by the government, is an abrogation of the court’s duty to safeguard the welfare and best interests of children. Judges are ‘passing the buck’.

To justify this extension to mRNA vaccines, judges are misapplying a rule of evidence called ‘Judicial Notice’.

In a sense, it is understandable why the Family Court would do so. It saves time. The system, which was already overloaded prior to COVID, would grind to a halt if every mRNA dispute went to a full-blown hearing with experts on both sides, or, where no experts were available, mum and dad battled it out themselves in court with their ‘research from the internet’.

Judicial Notice

Our present day law of Judicial Notice is contained in s128 of the Evidence Act 2006, which reads:

128 Notice of uncontroverted facts

(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
(2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.

Under Section 128, a judge may accept as a proven fact, without any proof, a thing so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.

For example, I would not have to prove in court that the 5th of August 2022 will be a Friday – the fact it is a Friday is accepted by the judge as evidence via Judicial Notice, because the accuracy of that statement cannot be reasonably questioned.

Judges would take Judicial Notice of the fact that, for example, the Earth orbits the Sun, and there would be no need to go to the time and expense of proving this in court, for it is a fact so ‘notoriously well-known’ and ‘unquestionable’.

Some other examples of Judicial Notice in action, taken from a 1993 report of the Law Commission on the subject, may also be illustrative:

• In a 1976 case the court took Judicial Notice of the fact that the DSIR (the old Department of Scientific and Industrial Research) was closed on public holidays.
• In a case from 1894, the court took Judicial Notice of the fact that Gisborne was more than 200 miles away from Dunedin.
• In a 1952 case, the court took Judicial Notice of the fact that there was a nationwide housing shortage in a matrimonial property case.

It can be seen that Judicial Notice should be reserved for those matters which are uncontroversial, obvious, or would in everyday parlance, constitute ‘common sense’. But judges are using Judicial Notice to accept the safety and efficacy of Pfizer’s mRNA vaccine, without any proof, because MedSafe have approved it.

It has become abundantly clear, through multiple, high level studies conducted around the world, and reported in some of the most prestigious scientific journals available, that the ‘safety and efficacy’ of mRNA vaccination is doubtful, despite the ‘head in the sand’ propaganda of state agencies like MedSafe. This body of evidence is growing by the day. While use of Judicial Notice may have been justified, as a precautionary measure and to expedite decision-making, at the beginning of the mRNA vaccine roll-out, it’s continued use by judges is no longer excusable.

What are the limits of Judicial Notice in the context of government medical advice? If tomorrow Medsafe and the Director General of Health were to recommend Thalidomide for the treatment of pregnant women again, would a Family Court judge take Judicial Notice of that too?

Reform of the Family Court system is needed to tackle COVID and future crises

The Family Court is not equipped to deal with crises in the nature of COVID, where science and data is evolving at a fast pace, and authoritative scientific opinion disagrees with government policy.

The odds are high that a judge in the Family Court won’t hear important evidence disputing MedSafe’s claims. One reason is the prohibitive financial cost of engaging an expert witness.

DTNZ asked Matthew Hague of Frontline Law to give an estimate of the costs for hiring an expert to give evidence in court. ‘For an expert witness at the PhD level, a witness can charge $800 per hour for preparation, and $10,000 per day of appearing in Court,’ said Hague. For just one expert for one day, a parent opposing mRNA vaccination is going to have to front up with around $15-$20,000. That’s on top of the thousands they have already spent in legal fees for their lawyer, and the thousands more they will part with for the hearing.

The threshold for legal aid is just $36,180 for a person with a dependent partner or child, or $54,245 for those with two dependents. A single person earning more than $23,820 is not eligible for legal aid. Such a person would have to spend almost their entire year’s wages funding the cost of an expert.

For those eligible for legal aid, the costs of medical experts must be approved by the Ministry of Justice. As Hague explains, ‘funding [for experts] is limited to what the Ministry of Justice deems to be “reasonable”’.

If there is a plethora of legal aid recipients who need funding for experts, it’s no stretch of the imagination to think more applications for expert funding will be declined – the Ministry of Justice doesn’t like budget blow-outs, even if that means limiting a parties’ access to the resources necessary to mount a proper case. Of the dozen or so cases DTNZ analysed for this article, not one of the parents opposing mRNA vaccines fronted up to court with an expert. Cost must be a significant factor in explaining this absence in some, perhaps all of the cases.

Judicial independence

The willingness of Family Court judges to rely on MedSafe dictates calls into question their independence. Many of the decisions analysed were delivered by judges who received their warrants under the current Labour government.

Of further concern, the one-eyed approach to mRNA safety concerns demonstrates an acute lack of awareness of the dangers of state propaganda. Judges watch the news and read the papers just like everyone else. Have they too fallen for the propaganda? It appears none of them are alert to the fact that the state is unethically funding the legacy mass media to the tune of tens of millions of dollars, through direct ‘public interest journalism’ grants and saturation Pfizer product advertising. The Mass media already make huge amounts of money – the parent companies of both Stuff.co.nz and NZHerald for example bring in well-in excess of a quarter of billion dollars each year in revenue. Judges appear unaware of the connections between Pfizer, the New Zealand state, and big tech and the New Zealand mass media, and the obvious conflicts of interest these give rise to. These are the exact circumstances in which government policy should not be trusted at face value, let alone accepted as the ‘default position’.

What can be done?

In a recent court case in the Ontario Superior Court in Canada, a judge was asked to take Judicial Notice of the safety and efficacy of a COVID mRNA vaccine. He refused. That decision, reported as JN v CG 2022 ONSC 1198, was delivered by Justice A. Pazaratz. He noted that the concept of Judicial Notice was being hijacked by judges, making it a substitute for evidence when it is properly a rule of evidence. He is dead right. Judicial Notice was never designed to cover a situation like the mRNA vaccine.

Pazaratz spent a great deal of time examining the place of Judicial Notice in mRNA vaccine disputes between parents, and I will quote extensively from his judgment.

‘After considering all the evidence – or often, the lack of evidence – can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?

1. Because if the answer is “yes”, then we’re wasting a lot of time and judicial resources.
2. If judges just “know” that all children should be vaccinated, then we should clearly say that that’s what we’re doing.
3. But equally, if that’s not what we’re supposed to be doing….then we shouldn’t do it.’ (paragraph 65).’

‘A statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion. Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is “safe and effective.’ (paragraph 66)

‘Why should we be so reluctant to take judicial notice that the government is always right?

1. Did the Motherisk inquiry teach us nothing about blind deference to “experts”? Thousands of child protection cases were tainted – and lives potentially ruined – because year after year courts routinely accepted and acted upon substance abuse testing which turned out to be incompetent.
2. What about the Residential School system? For decades the government assured us that taking Indigenous children away – and being wilfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies.
3. How about sterilizing Eskimo women? The same thing. The government knew best.
4. Japanese and Chinese internment camps during World War Two? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.
5. Few people remember Thalidomide. It was an experimental drug approved by Canada and countries throughout the world in the late 1950’s. It was supposed to treat cancer and some skin conditions. Instead it caused thousands of birth defects and dead babies before it was withdrawn from the market. But for a period of time government experts said it was perfectly safe.
6. On social issues the government has fared no better. For more than a century, courts took judicial notice of the fact that it was ridiculous to think two people of the same sex could get married. At any given moment, how many active complaints are before the courts across the Country, alleging government breaches of Charter Rights? These are vitally important debates which need to be fully canvassed.
7. The list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.
8. And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
9. When our government serially pays out billions of dollars to apologize for unthinkable historic violations of human rights and security – how can we possibly presume that today’s government “experts” are infallible?
10. Nobody is infallible.
11. And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review.’ (paragraph 67)

‘As well, how can you take judicial notice of a moving target?

1. During the past two years of the pandemic, governments around the world – and within Canada – have constantly changed their health directives about what we should or shouldn’t be doing. What works and what doesn’t.
2. And the changes and uncertainty are accelerating with each passing newscast. Not a day goes by that we don’t hear about COVID policies changing and restrictions being lifted.
3. Government experts sound so sure of themselves in recommending the current vaccines.
4. But they were equally sure when they told us to line up for AstraZeneca. Now they don’t even mention that word.
5. Even Pfizer has changed its mind. It recently approved vaccines for kids under five. Then more recently the company changed its mind.
6. None of this is meant a criticism. Everyone is doing their best with a new and constantly evolving health crisis.
7. But how can judges take judicial notice of “facts” where there’s no consensus or consistency? (paragraph 68)

‘And then we have the issue of delegation.

1. As with almost all these vaccine motions, the father asks for an order that his children receive the current COVID vaccine “and all recommended booster vaccines.”
2. Which recommended booster vaccines?
3. When?
4. How many?
5. What will they contain?
6. Who will decide?
7. Will there be any opportunity for future judicial oversight, or will this simply be a forever commitment controlled by the government.
8. What are the health implications if children receive the current vaccine, but skip some or all of the boosters?
9. What future COVID variant will the boosters guard against? We already seem to be using the Delta vaccine to fight the Omicron variant. Will future boosters continue our pattern of using old medicine to fight new viruses?
10. These are all valid questions, requiring answers which are currently unavailable.
11. It is improper for the court to pre-determine future medical treatments at unknown times, in unknown circumstances, with decision making authority delegated to unknown persons.
12. If you can’t take judicial notice of the present, you can’t take judicial notice of the future. (paragraph 69)

‘With the mother’s materials satisfying me that a legitimate and highly complex debate exists on the efficacy and utilization of COVID vaccines, I am not prepared to apply judicial notice as a method of resolving the issue. Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements.’

Summarising Justice Pazaratz’s reasoning:

• Claims made by Medsafe and the government on the mRNA vaccine’s safety and efficacy are opinions, and opinions should never be judicially noticed.
• We should never just assume the government, and its agencies like Medsafe are ‘always right’, because they have been wrong so many times in the past.
• The COVID space is fast-moving, with changes every day in policy, data and studies, so how can a judge take judicial notice of a fact today, which may be irrelevant tomorrow
• Given the lack of scientific consensus on the issue of mRNA vaccines, it was not appropriate to use Judicial Notice in resolving mRNA vaccine disputes.

Conclusion

The COVID crisis has demonstrated the Family Court’s inability to provide a fair and equitable forum in which to decide mRNA disputes. There will be more crises of this nature in the future – more novel, untested vaccines, more government sponsored ‘experts’ telling us what to do, more censorship of dissenting scientific data and research, more viruses, more saturation advertising, and more drug companies with direct connections to mass media entities quadrupling their profits.

The time has come for a system of expert scientific courts – tribunals which can be convened at short notice to deal with legal issues arising from medical and scientific emergencies like COVID. These courts should have a panel of decision-makers, comprised of legal, scientific and medical persons, all of whom are appointed independently of the government.

The method of appointment which ensures independence the best is appointment by lot, drawn from a pool of suitably qualified candidates. Appointment by lot may seem bizarre to many, but the method has been used successfully in the past in many civilisations that have lasted much longer than ours, most notably in appointments of senior positions in the Venetian Empire, including the Doges of Venice, and as the basis for appointment to public office in the cradle of democracy – ancient Greece. These models of governance recognised that appointment by lot ensured the right combination of fairness, objectivity, independence and competence. The full costs of experts retained by both parties should be met by the state.

We owe it to our children to ensure decisions made in the context of medical emergencies involving novel science, of which there will be many more to come in the future, promote these ideals.