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

Written by Chloe Branton

In a judgment published on 22 May 2020, the Court of Appeal-led by King LJ with whom McCombe and Peter Jackson LJJ agreed- dismissed the appeal against the judgment of Hayden J in the High Court. This judgment considers the proper procedural route in cases where a dispute arises between a Local Authority (‘LA’) and parents about the vaccination of a child subject to a care order. 

Background

In January 2020 Hayden J made care and placement orders in respect of a then 9-month-old baby, T. The background to the instigation of proceedings can be found in London Borough of Tower Hamlets v M, F and T [2020] EWFC 4. T’s parents objected to their child receiving routine vaccinations administered to babies in accordance with the guidance of Public Health England located in “The Green Book: Information for public health professionals on immunisations.” 

The matter came before Hayden J for determination in a discrete hearing in February 2020. The judgment of which is published as Re T (A Child) [2020] EWHC 220 (Fam). (See the link below[1] for a summary of his judgment on our website). Hayden J described the objections of the parents to the vaccination in his judgment at paragraph 22 as “both tenuous and tendentious” and (at paragraph 2) that the father was “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”. Consequently, their refusal to agree led to significant delay and necessitated the LA seeking a court order for T’s vaccination. 

Hayden J’s Orders and the Grounds of Appeal

 Hayden J made the following orders which were also the subject of the appeal to the Court of Appeal: 

         i.            “He declared that the local authority had lawful authority pursuant to s.33(3) Children Act 1989 to consent to and make arrangements for the vaccination of T notwithstanding the objections of his parents; and

       ii.            “Further, for the avoidance of doubt” he declared that it was lawful and in the best interests of T to be vaccinated as recommended by Dr Douglas in accordance with the revised scheme found within the guidance for babies of T’s age where they have not been given their vaccinations at the optimum age of under 6 months.” [6] 

Hayden J had therefore made the order for T’s vaccination under two jurisdictional routes. These two routes were s.33(3) Children Act 1989 (‘CA’) and by way of declaration under the court’s inherent jurisdiction, with permission granted under s.100 CA. 

Court of Appeal Decision

The Court of Appeal examined how the issue of vaccination has come before the Family Court in both public and private law cases. This included the case of Re SL (Permission to Vaccinate) [2017] EWHC 125 which Hayden J had considered in his High Court judgment.

Hayden J’s reasoning was contrary to that of MacDonald J’s in Re SL. MacDonald had characterised the issue of vaccination as one of ‘gravity’ and thus that it was not appropriate for an LA to gives its consent under s33(3) CA. Instead he thought the only proper mechanism was for an LA to apply for leave to invoke the inherent jurisdiction of the court under s.100 CA. Instead, at paragraph 12 of his judgment Hayden J held vaccines should not be characterised as “medical treatment” but instead as “a facet of public preventative healthcare intending to protect both individual children and society more generally.” He also saw the two routes for vaccination as the inherent jurisdiction under s.100, and s.33(3) CA.

At paragraph 84 King LJ in the Court of Appeal held that whether vaccinations are medical treatment or preventative health care is irrelevant. Instead what matters is the relative seriousness or gravity of a particular decision. Thus, this aspect of Hayden J’s analysis was parted from. However, the Court still held that vaccinations are not a grave issue of the kind where an LA would make an application to the court where there was parental objection [85].

It was held by King LJ, with unanimous agreement, that in these circumstances the LA could make the decision to vaccinate T of its own volition pursuant to s.33(3) CA. An application pursuant to the inherent jurisdiction was rejected as it was neither necessary not appropriate in the face of the clear medical and scientific evidence. Further, with the pressures of “urgent and serious” work before the Family Courts and the resources of an LA, such an application is inappropriate.

Conclusion of the Court of Appeal

King LJ  stated:

[104] “Pulling together the threads of this judgment, I have 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. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, 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. 

[105] It follows that the appeal will be dismissed and that the declaration made by the judge that the local authority has lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the vaccination of T, notwithstanding the objection of the parents, will stand.” 

Summary and Significance

Therefore, the Court of Appeal dismissed both grounds of the appeal as detailed above, and set out at paragraph 6 of the judgment. The court found that an application to invoke the inherent jurisdiction or to seek an injunction to try and prevent a child in care being vaccinated is not likely to succeed. Such an application should only be pursued if there can be put to the court in support some: “cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations” [102]. 

In this case the LA: “[103] could have used its statutory power to consent to T receiving routine immunisations at the appropriate times without the need to seek court approval. Any legal challenge the parents might have made would inevitably have failed. All that has been achieved by their opposition has been more delay and public expense. Fortunately, T’s case offers the opportunity to ensure that this process need not be repeated in other similar cases.” 

The judgment is significant in and of itself and for its implications in public law children matters. The case resolves the issue of vaccination by an LA in the face of parental objection where it is in the best interests of the child, subject to further appeal. However, this case could also have impact in the private law children arena too. 

At paragraph 93 King LJ stated: “This is not the case for this court to consider whether immunisation should properly continue to be a matter which must be brought to court where there is a private law dispute between the parents. It may be that time has moved on to the extent that Thorpe LJ’s categorisation would now be revisited in the same way as the Supreme Court in XX v Whittington Hospital Trust [2020] UKSC 14 recently revisited the earlier decision in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856.” Therefore, whilst not a private law authority, this passage of the judgment is certainly food for thought, and suggests that a well-timed private law appeal could lead to further developments. 

An article considering the impact of this decision will be published soon by Sara Anning and Simon Wilkinson. 

[1] https://www.parklaneplowden.co.uk/news/vaccinating-children-in-care-re-t-a-child-2020-ewhc-220-fam-mr-justice-hayden

Author

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