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Only a matter of time! – Covid vaccination of 12-year-old in Local Authority care approved by the court despite Mother’s objection

If you haven’t seen my previous articles on this topic, you can access them here: Covid Vaccines – will we have more disagreements about vaccinations in family law? & More on vaccinations – the decision in Re K. To complete the trilogy, we do now have an answer from the High Court as to how Covid vaccinations are treated when parents disagree – in this case, one of the parents being the ‘corporate parent’, the Local Authority.

In the case of Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam), the court was concerned with an almost 13 year old child who himself wished to be vaccinated with the Covid-19 and winter flu vaccines. Both the Guardian and the Local Authority supported his wishes, along with C’s father. However, the Mother opposed C being vaccinated.

Despite the earlier case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 outlining that a Local Authority with a Care Order can arrange and consent to a child in its care being vaccinated where it is satisfied it is in the child’s best interests, the Local Authority in this case rightly referred the matter to the High Court for authorisation to do so, given that the position has not yet been tested in relation to the Covid-19 or winter flu vaccinations. These types of vaccinations are not specifically set out in the routine immunisation schedules for children, however, are now being routinely offered to children of C’s age.

The Mother’s objection in this case was based on the Covid-19 vaccine not being a ‘tried and tested’ vaccination, compared to other childhood vaccinations. The Mother believed the Covid-19 vaccine to be unsafe. In relation to the winter flu vaccine, she wished to have more time to look into the safety before taking a position on what she considered to be its safety and efficacy at preventing flu. The Mother did not accept that the decisions made regarding national programmes of vaccination for each of these immunisations was based on sound evidence, and it was noted by the Court that in her arguments, the Mother had produced a number of items that could “only be described as anti-Covid-19 vaccination propaganda”.

Conclusions:

In holding that C should be vaccinated in accordance with his, but against the mother’s, wishes, the court commented as follows:

  • “I do not consider it appropriate for this court to embark on an investigation into the merits of any competing theses as to whether national programmes of vaccination of 12-15 year olds for Covid-19 or for children in school years 7-11 for the flu virus, are justified as being generally in the best interests of children in those age ranges. In cases that concern vaccines that are part of national programmes, the question of whether expert evidence is necessary will only arise if there is an identifiable, well-evidenced, concern about whether, due to their individual circumstances, a vaccine is contraindicated for a particular child, or if there is, as MacDonald J put it in M v H, "new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety" of one or more of the vaccines that is the subject of the application…". Even if such new research were available, I have serious reservations about whether an individual expert or individual judge could or should engage in a wholesale review of the evidence behind an established and continuing national vaccination programme.” (Paragraph 19)
  • “the principles set out by the Court of Appeal in Re H (above) apply equally to both the Covid-19 vaccination for 12-15 year olds and the winter flu virus vaccination for children in school years 7-11, as they do to the specific childhood vaccinations considered in that case” (paragraph 20)
  • “In the absence of any factors of substance that might realistically call into question whether the vaccinations are in an individual child's best interests, decisions for the child to undergo standard or routine vaccinations that are part of national vaccination programmes are not to be regarded as "grave" decisions having profound or enduring consequences for the child.” (paragraph 21)
  • “The view of a Gillick competent, looked after child of C's age deserves due respect when considering any question of their best interests. Given that C consents to the vaccinations, there is no conflict between him and the Local Authority. If, however, such a child refused vaccination, that would raise different questions, namely whether the local authority with parental responsibility could override the child's decision and whether the issue should be brought before the court. As I noted in the brief review of the law above, it is established that the court may override a Gillick competent child's decision.” (paragraph 22)
  • “Accordingly, applying the principles articulated by the Court of Appeal in Re H, I am quite satisfied that under s.33(3)(b) of the Children Act 1989 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 (i) such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency, (ii) the child is either not Gillick competent or is Gillick competent and consents, and (iii) the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child's welfare. There is no requirement for any application to be made for the court to authorise such a decision before it is acted upon” (paragraph 23)

Analysis:

As suspected, the Covid-19 vaccination (and, indeed, the winter flu vaccination) is treated no differently to other vaccinations appearing on the childhood vaccination schedule. Local Authorities therefore do not need to apply to the court to authorise vaccination when a child is in Local Authority care, and parents will be hard-pressed in the absence of scientific or expert evidence to prove to a court that vaccination should not occur for a child who does not have any characteristics which could contraindicate the use of these vaccinations.

In private law disputes between parents, it is highly likely that courts will treat such vaccinations in the same way as described here. As long as the vaccination is held to be in the best interests of a child, the court is likely to order that it should take place, even where one parent disagrees.

The situation may be different where the child, if Gillick competent, is not in agreement, but as the issue did not arise in this case, it was not considered. Although the court can of course override the decision of a Gillick competent child, if met with a resistant 14 or 15-year-old, it is likely that in practical terms a vaccination could not be administered without the child’s consent.