Children in care and vaccinations: who decides?

28 May 2020 by Rosalind English

Re H (A Child) (Responsibility Order: Vaccination) [2020] EWCA Civ 664

In the current circumstances, this case has important resonances and maybe even implications for future vaccinations. It was an appeal by the parents of a ten year old child against a decision that the local authority, had lawful authority to have the child vaccinated (pursuant to Section 33(3) of the Children Act 1989.

The local authority had made care and placement orders in respect of the child, who was at the time in foster care. The LA argued that it had lawful authority, pursuant to the Children Act 1989 s.33(3), to arrange the vaccination of a child in care notwithstanding the objection of the parents, and that therefore it was unnecessary and inappropriate to refer the decision to the High Court under its inherent jurisdiction. Parental views regarding immunisation had always to be considered but the decision depended solely on the child’s welfare.

The parents objected to the vaccination on the grounds that they constituted “serious medical treatment” and that in any dispute between a local authority and a parent as to whether a child in care should be vaccinated the proper procedural route should be an application under the court’s inherent jurisdiction.

A bit of background: in the hearing below, [2020] EWHC 220 (Fam), Hayden J said that the parents, but more particularly the father, were

driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children. To this end they had also declined to register T’s birth, [which also became a matter for the courts].

Vaccinations are not compulsory in this country, although in proceedings involving children the best interests of the child are paramount, and the current scientific evidence has established that it is in the best medical interests of a child to be vaccinated unless there are specific contra-indications in any individual case.

Again, in the court below, Hayden J observed at para [12] that vaccinations should not be characterised as “medical treatment” but as “a facet of public preventative healthcare intending to protect both individual children and society more generally”.

It would therefore be “disproportionate”, in his view, to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, “the result of which has been in every case to authorise vaccination”.

The judge therefore made the order for the vaccination of the child under two possible jurisdictional routes, either:

i) s.33(3) Children Act 1989 (CA 1989); or

ii) By way of declaration under the inherent jurisdiction of the court, with permission granted under s.100 CA 1989.

The issue before the Court of Appeal related solely to the identification of the proper procedural route to be adopted by a local authority where a dispute in relation to vaccination arises with parents in relation to a child in their care.

The parents’ appeal was dismissed.

Reasoning behind the Court’s decision

It was unimportant whether vaccinations were categorised as “medical treatment”‘ or as “preventative health care”. The critical issue was whether immunisation was to be regarded as “grave”‘ or “serious” in the context of the exercise of parental responsibility by a local authority such that they required the sanction of the court when a dispute arose. The vaccination of children under the UK public health programme was not a “grave” issue where there was no contra-indication in relation to the child especially as the alleged link between MMR and autism had been definitively disproved. Where there were no care proceedings, a parent could not be considered to be causing a child to suffer significant harm if they decided not to vaccinate their child, so the same refusal could hardly provide reasonable cause to believe that the child was likely to suffer significant harm in order to invoke the inherent jurisdiction under s.100(4)(b). The judge had been correct to categorise immunisation as not amounting to an issue of gravity.

As far as the power of a local authority under s.33(3)(b) was concerned, the Court observed that a local authority with a care order could arrange for a child in its care to be vaccinated where it was satisfied that it was in the best interests of that individual child, notwithstanding the objections of parents. However, it would be inappropriate for the court to make an interim care order in order to activate s.33 where the parents were “caring, committed and capable” (see paras 89-90 of O (A Minor) (Medical Treatment), Re [1993] 3 WLUK 225).

Parliament had specifically given the local authority the power under s.33(3)(b) to override the views of a parent holding parental responsibility, so the local authority’s view prevailed in all matters except those found in the statutory exceptions or where the decision was of such magnitude that it properly fell within s.100 (paras 91-95).

The position of parents – It was axiomatic that the local authority involved parents in decision-making and took their views into account. Section 33 was not an invitation to local authorities to ride roughshod over the wishes of parents whose children were in care. Where parents were opposed to vaccination they could apply to invoke the inherent jurisdiction and, if necessary, could apply for an injunction under the Human Rights Act 1998 s.8 to prevent the child being vaccinated before the matter came before a court for adjudication. However, they were unlikely to succeed unless they could present cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations (paras 99-103).

Vaccinations where no doubt in the best medical interests of the child. As King LJ observed,

In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications, as was the case in relation to one specific vaccine in Re C and F (Children) [2003] EWHC 1376 (Fam) (Re C and F)

The Court therefore concluded that:
i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.

ii) Under s.33(3)(b) CA 1989 a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.

iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter, so as to invoke the inherent jurisdiction of the LA and therefore it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.

iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

It followed that the appeal was dismissed and that the declaration made by the judge below that the local authority had lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the vaccination of the child, notwithstanding the objection of the parents, will stand.