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Covid-19 & Winter Flu Vaccinations for Looked after Children - Re: C (Looked after Child) (Covid-19 Vaccination) [2021] EWCH 2993 (Fam)

This week’s blog is brought to you by Grace Atkinson – pupil to Frazer McDermott

In September 2021 the NHS announced the roll out of the Covid-19 vaccination to school children aged 12-15 years old. One month later, the winter flu vaccination programme for 2021-22, which already included children of primary school age, was expanded to include children in their secondary school years.

Soon after the expansion of these vaccination programmes, in November 2021, the High Court heard the first ever case concerning the power of a Local Authority (LA) to arrange and consent to Covid-19 and winter-flu vaccines for a looked after child, against the wishes of a parent.

Background

C, a 12 year old boy, was made subject to a care order in 2015. Upon the announcement of the extension of the vaccination programmes outlined above, C expressed that he wished to be vaccinated with both the Covid-19 and winter flu vaccines. One of the reasons he put forward for wishing to be vaccinated was that he did not wish to infect a disabled child with who he shared a care placement [18]. C had no known health conditions or contraindication as a reason to not be vaccinated.

F was in support of C’s wish, however M strongly opposed him being vaccinated, issuing a ‘Vaccine Refusal Declaration’ to the LA immediately upon learning of her child’s wish [6]. M’s case was based on the argument that both of these national vaccination programmes are not based on sound evidence and that neither of the vaccines would offer C any effective protection [14].

The LA entirely supported C in his wish to be vaccinated. In October they applied to the High Court for confirmation that, in exercising parental responsibility under section 33 of the Children Act 1989, it would be lawful for the LA to consent to and arrange C’s vaccinations notwithstanding parental objection. In the event that the court deemed this to be unlawful, the LA sought for a declaration under the inherent jurisdiction of the court to authorise the vaccinations as it is in C’s best interest to have them [3].

The Law

 Section 33 of the Children Act 1989

Sub-Section 33(3)(a) of the CA 1989 provides that whilst a care order is in force with respect to a child, the LA shall have parental responsibility for the child. This includes, as per s.33(3)(b), the power to determine the extent to which a parent, guardian or special guardian of the child may meet their parental responsibility for the child.

However, there is a clear limit to the LA’s power under this section, this being that the LA may not exercise their power under s.33(3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.

In analysing King LJ’s comments in Re H (see below), Poole J noted that:

‘… a local authority should not use s.33(3)(b) to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child’ [7].

It logically follows that as part of Poole J’s analysis, he needed to determine whether the issue of consenting to Covid-19 and winter flu vaccines fell into this category of ‘serious or grave matters’.

Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664

Re H was a Court of Appeal case concerning routine childhood immunisations, where King LJ concluded that:

‘…a local authority can arrange consent to a child in its care being vaccinated when it is satisfied that it is in the best interests of that individual child, notwithstanding the objection of parents’ [104].

His reasoning was as follows:

‘…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…’

‘…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’ [104].

Of course, Re H only dealt with the issue insofar as routine childhood immunisations were concerned. Poole J was dealing with two different forms of vaccinations in the present case, with the Covid-19 vaccination in particular being a far more novel and recently created vaccine than those of routine childhood immunisations. No judgment in public family law pertaining to these matters could be identified by any of the parties [11].

M v H and PT [2000] EWFC 93

This private law case concerned the same question as that heard in Re H, regarding routine childhood immunisations, however it was a private law dispute. MacDonald J’s judgment related only to the vaccines on the NHS vaccination schedule, however he did offer obiter comments relating to the Covid-19 vaccination programme, stating:

“…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” [4].

The Gillick Competence Test

Poole J did not find it necessary to undertake an assessment of whether or not C is a Gillick competent child, owing to the fact that there was no conflict of opinion between C and the LA. He noted in his judgment:

‘…the view of a Gillick competent, looked after child of C’s age deserves due respect when considering any question of their best interests… if 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’ [22].

Ultimately, Poole J chose not to answer such questions in his judgment, instead favouring a short and clear judgment pertaining to the questions arising from the facts in this case only.

The Evidence

The evidence adduced by the LA is outlined in detail at [15]. In relation to the Covid-19 vaccination, the vast majority of the evidence refers to the publication of advice by the UK Health Security Agency created in 2021, whose general guidance as to the Covid-19 vaccine for children was:

‘…while Covid-19 is typically mild or asymptomatic in most young people, it can be very unpleasant for some and 1 dose of the vaccine will provide good protection against severe illness and hospitalisation’ [15].

The LA then relied upon the UK Health Security Agency guidance created for the winter flu vaccination programme 2021-22 which stated the various complications flu can lead to in children and the benefit of the programme in helping children ‘…protect themselves and to stop them spreading flu to their families and the wider community’ [15].

M agreed in evidence that she knew of no health problems C had that contraindicate the use of either of these vaccines. Poole J comments on M’s evidence at [17] stating that she:

‘…adduced a number of items that can only be described as anti-Covid-19 propaganda … (which was) devoid of evidence or even rational argument and does not point to any peer-reviewed research evidence that raises any significant concern about the efficacy or safety of either vaccine’.

 The Children’s Guardian, who adopted the same position as the LA, referred to meetings with C where he had clearly expressed his views [18].

The Judgment

Applying the principles from Re H, Poole J concluded that the LA did have the power under s.33(3)(b) of the Children Act 1989 to arrange and consent to C receiving both the Covid-19 and winter flu vaccinations, notwithstanding objections from a parent, 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 LA is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare [23].

Poole J made it clear at [19] of his judgment that it would be inappropriate for the court to analyse or investigate the merits of the national Covid-19 and winter flu vaccination programmes for children in this age range. It was considered when expert evidence may be determined as necessary in these types of cases, with Poole J concluding this would only be the case when there is either a well evidenced concern that a vaccine is contraindicated for a particular child or new peer-reviewed research evidence indicated significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application.

It was also noted that had it been necessary for Poole J to exercise the court’s inherent jurisdiction he would have, concluding that it is in C’s best interests to have both vaccinations [24].

Discussion

This judgment will no doubt provide some clarity for LAs going forward as to their powers in relation to consenting and arranging Covid-19 and winter flu vaccinations for looked after children. Poole J stated with clarity that LAs do not need to seek court approval in respect of these decisions surrounding vaccinations in the vast majority of cases [26]. However, LAs should be alive to the individual circumstances of the child, and whether those circumstances make the decisions surrounding these vaccinations ‘grave’. As per King LJ in Re H, ultimately each situation will involve ‘individualised welfare decisions in relation to the child in question prior to arranging his or her vaccination’ [33].

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