Opinion
6 December 2021

Covid-19 Vaccinations for Looked After Children: C (Looked After Child) (Covid-19 Vaccination)[2021] EWHC 2993 (Fam)

Written by Chloe Branton.

Introduction

C, a boy almost 13 years old, is a looked after child following the making of a care order in 2015. C wishes to be vaccinated with the winter flu and Covid-19 vaccines. On 12 September 2021 it was announced that Covid-19 vaccination would be offered to 12-15 year old children, and the winter flu vaccine for school years 7-11 was added to the flu vaccine programme on 13 October 2021. C informed his Mother at supervised contact on 22 September 2021 that he wished to be vaccinated for Covid-19, and confirmed this to his social worker the next day. The LA and CG considered it in C’s best interests, with C’s Father supporting C’s decision.

C’s Mother was strongly opposed to him being vaccinated and had informed CSC of her opposition to the Covid-19 vaccine on 13 September 2021. She wrote to the LA on 23 September 2021 and enclosed a signed “Vaccine Refusal Declaration”. The Mother’s case remained that she wanted compelling evidence that the vaccines were both safe and effective for C. She did not accept that the national programmes were based on sound evidence, and she did not accept that either vaccine would be effective in protecting C or other children. The Mother also stated she would hold the court responsible if C suffered an adverse reaction, whilst acknowledging that he had no known health conditions.

The LA sought confirmation from the High Court that it is authorised to exercise PR and consent to vaccinations under s33 Children Act 1989. The LA’s application for a declaration under the inherent jurisdiction of the High Court was issued on 25 October 2021. The case was brought because of: (i) the Mother’s implacable opposition, (ii) the point on these specific vaccinations not having yet been tested in Court, and (iii) for the court to exercise its inherent jurisdiction to declare it in C’s best interests to have the vaccinations if the LA does not have the power under s33.

The Law

The court considered s33 Children Act 1989 regarding the exercise of PR by an LA, in line with the current authorities around vaccination, including Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664. It was agreed that the Court of Appeal held in Re H that an LA with a care order can arrange and consent to vaccination of a child in its care where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. The parties were unable to identify a judgment in a public law case concerning either the Covid-19 or winter flu vaccination programmes.

The judgment of MacDonald J in the private law vaccination case of M v H and PT [2020] EWFC 93 was also considered. This judgment, it was noted, was confined to the vaccines of the NHS vaccination schedule. At the time of that judgment the adult Covid-19 vaccination programme was in its early stages with no such programme on the vaccination of children. MacDonald J’s obiter comments at [4] were raised, however, given he had stated:

“… it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidence contraindication specific to that subject child.” [emphasis in the original]

Finally, the court considered the “Gillick Competence” test as per Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830. In this case, Poole J noted the child was almost 13 and strongly in favour of being vaccinated. Poole J examined Re H (A Child) (Parental Responsibility: Vaccination) and noted that that particular case dealt with very young children.  The court reiterated that the assessment of whether a child is indeed Gillick competent is both child-specific and decision-specific, and that the decision of a Gillick competent child will not necessarily be determinative and can be overridden by the court. Finally, a 12-year old cannot be conclusively be presumed Gillick competent in relation to a vaccination decision.

Judgment

In terms of the question of Gillick competence, Poole J noted that if a Gillick competent child were to refuse vaccination it would raise different questions than that to be looked at here (overriding the views of a parent). He noted that the LA overriding a child’s decision would be a different situation. However, Poole J declined to determine this issue any further as in the present circumstances it would be an academic activity.

The Court found it would not be appropriate to investigate the merits of whether a national programme for vaccination of children (Covid-19 and winter flu) was in the best interests of children in general. It was about whether the best interests of the particular child were served by the vaccination. The Court should only consider expert evidence around the vaccines where there is new peer-reviewed research evidence focused on the safety or efficacy of the vaccine(s), or where there is a well-evidenced concern that the vaccine is contraindicated for that particular child. In most cases, therefore, expert evidence is not necessary or appropriate.

The Court confirmed under s33(3)(b) Children Act 1989, where an LA has a care order (including an interim care order), they can arrange and consent to vaccination of a child in its care for the Covid-19 and winter flu vaccines despite the objections of the child’s parents. The basis for this was (i) the vaccination is part of an ongoing national programme; (ii) the child is Gillick competent and consents or is not Gillick competent; and (iii) they are satisfied it is necessary to safeguard or promote that individual child’s welfare. The Court reiterated there is no requirement for an application to be made for authorisation by the Court before vaccinating in those circumstances. Instead, a parent opposing vaccination would need to apply to prevent vaccination as per Re H.

For completeness, it was recognised that s33(3) Children Act 1989 does not provide total freedom for an LA to arrange and consent to vaccinations in every case. LAs should not rely on s33(3)(b) to make grave decisions with profound or enduring consequences for that child. “Individualised” welfare decisions must be taken for each child, and it also cannot be discounted that there is a possibility an individual child’s circumstances may make such a decision “grave”. In the vast majority of cases, however, no application is necessary even with parental objection.

Commentary

We now have a High Court authority specifically addressing the Covid-19 and winter flu vaccine programmes. Whilst the judgment essentially reiterates the law from the previous cases, the judgment is particularly welcome given the Court had previously chosen not to consider the Covid-19 vaccination scheme. Together, Re C (Looked After Child) and Re H (A Child) (Parental Responsibility: Vaccination) confirm that the LA need not apply for a declaration that it is in a child’s best interests to have such vaccinations. Despite being a public law judgment, this case is also likely now to assist in private law disputes as it goes a step further than M v H and PT.

Whilst the Court again confirmed that the LA need not in most cases apply for a declaration, (and reiterated that the onus is on the parent opposing vaccination to apply instead,) it is likely that LAs will continue to bring such applications. LAs remain cautious about their powers in the face of strong opposition, particularly with something as emotive as vaccination. It will be interesting to see whether any cases come before the Court following this decision where a child’s Gillick competence is to be assessed and potentially overridden.

Related Articles

To read more about Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 and M v H and PT [2020] EWFC 93 please see the following articles also on the website.

Vaccinating Children in Local Authority Care: Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664.

Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020)

C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021) (bailii.org)

Author

Parklane Plowden barrister, Chloe Branton, specialises in children law work, both public and private law. She undertakes both public and private law children work and is regularly instructed for Local Authorities, Children’s Guardians and parents. Chloe has a particular interest in cases involving: vaccination, FGM and forced marriage, and the removal of parental responsibility.