Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)
The High Court was asked to detemine whether a child should receive vaccinations for coronavirus and winter flu. Poole J considered the legal principles and concluded that the same approach should be undertaken as with other standard/routine vaccines, providing guidance on s.33(3)(b) of the Children Act 1989, as well as the inherent jurisdiction and Gillick competence in these circumstances.
Facts
C is a boy of nearly 13 years old. He is subject to a care order made in 2015. C wished to be vaccinated with the coronavirus and winter flu vaccines and his wishes were supported by his Guardian, the Local Authority and C’s father. C’s mother strongly objected to his being vaccinated.
The Local Authority’s position was it was in C’s best interests to receive the vaccinations and as it held parental responsibility for C under s.33 of the Children Act 1989 it had the right to exercise its parental responsibility and arrange for C to be vaccinated. However, the Local Authority made an application to the High Court for confirmation of its authority for three reasons:
- C’s mother held strong objections to C being vaccinated
- Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 held that a Local Authority with a care order can arrange and consent to a child in its care being vaccinated when in the best interests of the child. However, this has not been applied in regards to the coronavirus or winter flu vaccines
- If the Local Authority is incorrect in its explanation of its power under s.33, it seeks permission to apply for a declaration under the High Court’s inherent jurisdiction that it is in C’s best interests to have the vaccinations
Local Authority powers under s.33 of the Children Act 1989
In discussing s.33, Poole J referred to the principles in Re H and M v H and PT [2020] EWFC 93. However, Poole J noted that Re H and M v H and PT differed from the case before the court as they concerned vaccinations which had been recommended for children in the routine immunisation schedule. Further, the cases did not involve a 12 year old expressing clear views on the proposed vaccinations.
In considering these principles, Poole J concluded that the exceptions to the general power in s.33 do not apply to this case and the Local Authority could arrange and consent to C receiving the vaccinations under s.33(3)(b). Although “a local authority should not use s.33(3)(b) to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child…The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter.”
Overarching principles
Poole J confirmed that a “local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when
- such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency
- the child is either not Gillick competent or is Gillick competent and consents, and
- the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare.”
Nonetheless, Poole J cautioned that “s.33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case,” as
- the statute cannot be relied on regarding ‘grave’ decisions, as explained above
- pursuant to s.33(4), Local Authorities must make ‘individualised’ welfare decisions concerning the child prior to arranging vaccination
- there is always the option for objecting parents to make an application to invoke the inherent jurisdiction and perhaps an injunction under section 8 of the Human Rights Act.
Poole J notes that in the majority of cases involving looked after children, no application will need to be made by the Local Authority to the court regarding the provision of such vaccinations under national programmes, even if there are parental objections.
Further matters
National vaccination programmes and children
Despite the information put before it, the Court concluded that it was inappropriate for it to determine the merits of whether national vaccine programmes for children are in their best interests. Poole J concluded that Re H does apply to both the coronavirus vaccine for 12-15 year olds and the winter flu vaccine for 7-11 year olds.
“The court can be satisfied, without the benefit of expert evidence, that the decisions to include the vaccinations in national programmes are based on evidence that they are in the best interests of the children covered by the programmes…administering a vaccine gives rise to a risk of harm to a child. Not giving a vaccine gives risk to a risk of harm to a child. Voluminous evidence establishing the extent and balance of risks and benefits needs to be obtained before a decision is made to roll out a national programme of vaccination for children.”
Gillick competence
Regarding the views of C, Poole J stated that an assessment of C’s Gillick competence is not necessary as there is no conflict between his views and the local authority. If a case arises where a child refuses a vaccination, the questions of “whether the local authority with parental responsibility could override the child’s decision and whether the issue should be brought before the court” would arise – it is not confirmed how the court would approach these questions.
Inherent jurisdiction
The court noted that in the circumstances before the court it was unnecessary for it to exercise the inherent jurisdiction. However, if it had been necessary, the Poole J stated that he “would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings.”
Pietra Asprou
