Vaccinating Children in Care: Re T (A Child) [2020] EWHC 220 (Fam), Mr Justice Hayden.

Written by Chloe Branton

On 2 April 2020 the Court of Appeal refused the appeal in Re T (A Child)[1] with reasons to follow. It is anticipated that the current health crisis will result in some delay in the publishing of those reasons. Importantly, however, the judgment of Hayden J in the High Court stands. His judgment empowers Local Authorities to make responsible decisions in regards to the vaccination of children in their care. The decision shows there is no need for court involvement on the decision to vaccinate where the objections of parents have no reasoned basis or do not reflect the child’s interests.

The case was heard on 5 February 2019 and considered section 33(3) Children Act 1989 (CA) and the duties of the Local Authority, Tower Hamlets, under section 22 CA. The subject child, T, was a 10 month old baby and Tower Hamlets sought a declaration thatit was in T’s interests to receive a schedule of vaccinations. The opposition to the application was led by Mother’s counsel at the hearing. Her case was that “she and her previous partner, and F with his former partner, have had children with multiple health conditions. She insinuates… that these conditions may be linked to vaccination.”[2]

Tower Hamlets invited the court to consider whether the Local Authority was capable of authorising vaccinations under s33(3). They “understood the appropriate route as being to require an application for declaratory relief”[3] and emphasised the judgments of MacDonald J in Re SL[4] and Munby J in Re AB[5] [2013] EWFC 2.

Hayden J explained how in Re SL MacDonald J “characterised the issue of vaccinations as one of gravity”[6]  whereas Hayden J himself considered that vaccines cannot be properly characterised as ‘medical treatment.’[7]  He said “They are a facet of public preventative healthcare intending to protect both individual children and society more generally.”[8] He stated:

“14. It is important to place applications for authority to vaccinate in this spectrum. This is to confront the fact that they lie at the least intrusive end of the scale of intervention. I do not in any way intend to diminish the inevitable stress and anxiety that such vaccination will always carry for loving and responsible parents. But neither do I regard them as a 'grave issue' outside the scope of s.33(3) CA.” 

Hayden J indicates that where the Local Authority holds parental responsibility, the consent of that Local Authority suffices. It would instead be for a parent who objects to the vaccinations intended to apply under the inherent jurisdiction, in order to obtain a declaration that proceeding with the vaccination programme would not be lawful.

Hayden J ultimately concluded therefore that “this question of immunisation properly falls within the Local Authority’s remit, as prescribed by s33(3).”[9]  Because the matter came before him as a contested application for a declaration under the inherent jurisdiction the declaration sought by the Local Authority was granted in any event.

This case is important in the current context of the ongoing Covid-19 situation amidst the falling vaccination rates for children in the UK[10]. In England and Wales vaccination is not mandatory and parental consent is required. Thus parents who decide not to vaccinate their children are not sanctioned for this unlike in other countries. The decision in Re T (A Child), and the Court of Appeal upholding this High Court decision, is likely to be welcomed by local authorities for the clarity it provides that the onus is upon the parents objecting to seek a declaration.  A parent can be notified of the intention to vaccinate, given a suitable period to apply to the Court should they object, and be informed that after that period has elapsed the vaccination will be undertaken.  The judgment in Re T (A Child) is likely to find itself cited in correspondence and care proceedings in the coming months.  In any case where the parents are unlikely to consent, Local Authorities are likely to consider it very sensible to obtain in advance an immunisation report, confirming that the child’s medical records have been considered and the medical expert recommends that vaccinations are in that child’s best interests.  In the context of older children who have not been vaccinated, such a report should explain how the schedule of vaccinations should be undertaken.

Questions do arise however in relation to the judgment’s application in respect to a vaccination for Covid-19, once available. Whilst Hayden J envisaged the vaccinations for T falling within the scope of section 33(3), those vaccinations were described as “ultimately routine vaccinations”[11] making it disproportionate for “a Local Authority to be required to apply to a High Court Judge” for authorisation.However, any vaccination that becomes available for Covid-19 is unlikely to be considered ‘routine’ within the first few months. As such, Local Authorities may find themselves before the court seeking a declaration for a Covid-19 vaccine until such a time that vaccine could be considered ‘routine’. Alternatively, the current health crisis may encourage the government to consider the introduction of compulsory Covid-19 vaccination in the United Kingdom.

Even outside the context of potential vaccines for Covid-19, Local Authorities may still seek a declaration from the court due to concerns around anticipated response from the parents if they proceed with vaccination. Regardless of “whatever its strict rights may be…” a Local Authority may still be anxious to rely upon its parental responsibility when vaccination is opposed by parents who also have parental responsibility. This echoes the concerns voiced by the former President of the Family Division, Sir James Munby, in Re AB [2013] EWFC 2. If the Local Authority does signal their intention to the parents to vaccinate a child under the authority of section 33(3) CA, the parents may of course make an application to block that under the inherent jurisdiction.

To conclude, whilst a welcome judgment aiming to empower Local Authorities to vaccinate children in their care, matters concerning the vaccination of such children may still come before the court under the inherent jurisdiction regardless of the remit of section 33(3) CA.

[1] Re T (A Child) [2020] EWHC 220 (Fam)

[2] Ibid, 3

[3] Ibid, 6

[4] Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam)

[5] Re AB [2013] EWFC 2

[6] Re T (A Child) [2020] EWHC 220 (Fam), 12

[7] Ibid

[8] Ibid, 12

[9] Ibid, 35

[10] National Statistics, ‘Childhood Vaccination Coverage Statistics- England 2019-19’, 26 September 2019 <http://digital.nhs.uk/data-and-information/publications/statistical/nhs-immunisation-statistics/england-2018-19>

[11] Re T (A Child) [2020] EWHC 220 (Fam), 16

Author

Chloe Branton is a barrister specialising in both public and private children work.