Introduction
Since March 2020 the Covid-19 pandemic has impacted upon every aspect of society. The Family Justice System is no exception.
Early into the pandemic there were reminders as to the availability of (previously little-known about) legislation to keep business going (rules 1.4(e), 4.1(3)(e), 22.3 FPR 2010 and similar), the issuing of National Guidance (March 2020) and the Family Court itself was faced with litigation concerning the conduct of hearings and the circumstances in which proceedings might be progressed… or not (see Re A (Children) (Remote Hearing): Care and Placement Orders [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing): Interim Care Order [2020] EWCA Civ 584).
Given the far-reaching impact of the Covid-19 pandemic and some in society’s extreme opposition to related national vaccination programmes, it came as little surprise that the Family Court was recently asked to determine the approach to COVID-19 (and winter flu) vaccinations for looked after children in circumstances when a parent with shared parental responsibility opposed the Local Authority’s plan to arrange and consent to these for the child.
Background
- provide that while a care order is in force with respect to a child, the Local Authority shall have parental responsibility for the child and the power to determine the extent to which a parent may meet his parental responsibility for him. However, the Local Authority may not exercise the power unless it is satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.
- The scope of the Local Authority’s power to override parental wishes has been qualified so that it should not be exercised in relation to ‘serious or grave matters with profound or enduring consequences for the child’ (Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664).
- In Re H, the Court of Appeal held that the Local Authority could override parental opposition to a looked after child being vaccinated – King LJ stating “In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question”. Re H concerned the administration of diphtheria, tetanus, whooping cough, polio, meningitis B and C, measles, mumps and rubella vaccinations.
- In the instant case, the child (aged 13) wished to receive both the winter flu and Covid-19 vaccinations. This was supported by the Local Authority, Guardian and Father. Mother, however, vehemently opposed on the basis that she did not believe that:
- (i) the vaccines would protect children; or
- (ii) that the national vaccination programmes were based on sound evidence.
- The Local Authority applied to the High Court for confirmation that it was entitled to exercise its parental responsibility to arrange and consent to the child’s vaccination by virtue of Section 33 CA 1989. The application was prompted by Mother’s implacable opposition and the Authority’s uncertainty as to whether the Covid-19 and winter flu vaccinations fell within the scope of Re H. In the alternative, the court was invited to exercise its inherent jurisdiction to declare that it is in the child’s best interests to have the vaccinations.
Judgment
- Mr Justice Poole endorsed Lady Justice King’s conclusions in Re H which were that:
- 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.
- 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.
- 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.
- 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.
- Accordingly, it was held that:
- 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. Like the standard vaccinations for infants, the Covid-19 and winter flu virus vaccinations are now part of national programmes of vaccination for children approved by the UK Health Security Agency.
- Applying the principles in Re H, Poole J was quite satisfied that under section 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
- 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.
- In such circumstances there is no requirement for any application to be made for the court to authorise such a decision before it is acted upon.
- It was unnecessary for Poole J to exercise his powers under the inherent jurisdiction given the above but had it been necessary he 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”.
Takeaway points
- In light of the Covid-19 anti-vaccination movement showing little sign of abating and the other side of the pandemic being reached (particularly given the current and anticipated presence of further variants in this country (and it not being possible to rule out extension of the vaccination programme to children younger than 12), Local Authorities will no doubt derive benefit from Poole J’s comment that “in the great majority of cases involving looked after children, no application will need to be made by the local authority to the court in respect of decisions to proceed with Covid-19 and/or flu virus vaccinations provided under a national programme, even when there is parental objection”.
- The further guidance offered as to the exercise of its section 33 powers and discouragement to resort to litigation will also be welcomed by Local Authorities particularly in the context of their already overstretched financial and other resources. Poole J endorsed King LJ’s comments in Re H that to refer such matters to court “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”.
- Local Authorities may also derive comfort from Poole J’s comments that even where the individual circumstances of the child based on gravity arise in challenge to a national programme of vaccination “I have serious reservations about whether an individual expert or individual judge could or should engage in a wholesale review of the evidence”
- Local Authorities should, however, be mindful that Re H and the instant decision do not give them carte blanche when exercising their section 33 powers. That power is qualified:-
- When decisions are grave with enduring or profound consequences for the child (including cases when an individual child’s circumstances might make such a decision “grave”).
- By a need for an ‘individualised’ welfare decision in relation to the child in question
- By the parents’ ability to seek to invoke the court’s jurisdiction to injuct a proposed medical course of action
- The decision, however, still leaves some uncertainty as to the position of Gillick competent children who do not wish to be so vaccinated. Poole J declined to engage in what would have been an academic indulgence given the child’s position in that case save that he extended an invitation for any such issues to be put before the court.
- As an aside, definitive authority is also awaited as to the approach of the court when resolving private disputes between parents as to whether a child (whom the Local Authority does not hold parental responsibility for) should receive the Covid-19 vaccination. The case of M v H (private law vaccination) [2020] EWFC 93 did not resolve the issue because at the time of that hearing it was “unclear… whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children”. Given official guidance in respect of 12-15 year olds has since been issued, as surely it was anticipated that the case considered in this article would fall for judicial determination, we can expect this private law issue to be addressed in short course. Given the approach of the court in M v H and MacDonald J’s comments that “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 evidenced contraindication specific to that subject child” a general direction of travel can, however, be reasonably predicted.
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