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Vaccination: Course Correction Local Authority powers following Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664

Chris Barnes, and Harry Langford, barristers at 4PB, consider the case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 in which the Court of Appeal has made a significant intervention in the vaccination arena, potentially redefining the scope of local authority powers under section 33 of the Children Act 1989.

 

Chris Barnes, and Harry Langford, 4PB

The authors acted for the respondent local authority.


In a particularly timely appeal the Court of Appeal (McCombe, King, and Peter Jackson LJJ) in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 has considered the proper procedural route to be followed where a dispute arises between a local authority and parents as to whether a child subject to a care order should be vaccinated.

This decision has potentially significant and wide-ranging consequences in the public and private law arena. Amid continuing anxiety about vaccine uptake the judgment also represents the most significant intervention on the question of immunisation in recent years.


Background

The appeal arose in the context of highly conflictual public law proceedings with the child, T, having been made subject to care and placement orders (see Re T (A Child) [2020] EWFC 4) The registration of T's birth had already come before the High Court with Hayden J having concluded that the local authority had the authority under section 33(3) of the Children Act 1989 ('CA 1989') to act as a 'qualified informant' (see Re T (A Child) [2019] EWHC 1572 (Fam)).

The parents, and most particularly the father, were described by Hayden J as being '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'. When it came to the question of vaccination the parents opposed the administration of vaccinations. The issue of whether T should be vaccinated came to be determined following him being made the subject of a care order in favour of the local authority.

At first instance the parents relied upon a range of objections which Hayden J described as 'both tenuous and tendentious' and which echo many of the concerns raised by vaccine sceptics, the so-called 'anti-vax movement'. The judge found that T, who was a healthy infant with no contra-indications, should be administered the ordinary course of vaccinations recommended by Public Health England.


Vaccination before the Family Court

The issue of vaccination arises in cases before the Family Court in the context of both private law and public law cases.

In 2003, the Court of Appeal considered a case (In re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095)) in which Sumner J had at first instance granted applications for specific issue orders sought by two fathers in respect of their daughters requiring each of them to be given age-appropriate immunisations. Each of the mothers opposed the applications on the basis that immunisations posed an unacceptable risk to the health of children. Thorpe LJ, in dismissing the appeal (and no doubt reflecting the medical and scientific debate at the time), held that immunisation, alongside sterilisation, and the change of a child's surname, formed part of a small group of hotly contested issues which required the court to settle the dispute between parents who could not agree on the appropriate course for their child.

Thorpe LJ did, however, accept the proposition that immunisations amount to preventative care rather than medical treatment, by dint of Article 24 of the UN Convention on the Rights of the Child, and should be categorised differently.

Moving on 15 years, in Re B (A Child: Immunisation) [2018] EWFC 56, HHJ Clifford Bellamy, sitting as a Deputy Judge of the High Court, ordered the immunisation of a child in private law proceedings. He held that vaccination is properly categorised as an issue of preventative health care rather than medical treatment, and noted that the case before him was the sixth occasion on which the court was required to determine whether a child should be vaccinated in circumstances where a birth parent objected. The judge said that:

"…With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed."

The most recent decision bearing on a local authority's ability to consent to vaccination was that of MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 ('Re SL') in which he concluded that a local authority could not authorise vaccination, contrary to the wishes of a parent:

'31. Thus, where there is a dispute between those holding parental responsibility (whether as between parents or between parents and a local authority holding a care order) as to whether such a vaccination or vaccinations should take place the court has jurisdiction to determine the dispute. In determining the question before the court, the welfare of the child is the paramount consideration of the court. Within this context, the court must accord appropriate weight to the views of the parent or parents having assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence.

32. In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute is between the local authority sharing parental responsibility for the child and the parent with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s 9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation pursuant to the provisions of s 33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order (see A Local Authority v SB, AB & MB) [2010] 2 FLR 1203 and Re Jake (Withholding Medical Treatment) [2015] EWHC 2442 (Fam)).' [Emphasis added]


The decision of Hayden J at first instance

When the matter came before Hayden J, in a decision reported as Re T (A Child) [2020] EWHC 220 (Fam), the Court was invited to consider whether the decision of MacDonald J in Re SL was correct and whether the scope of the local authority's powers under section 33(3) CA 1989 extended to authorising vaccination.

Insofar as it is relevant section 33(3) CA 1989 provides:

'(1) Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2) […]

(3) While a care order is in force with respect to a child, the local authority designated by the order shall–

(a) have parental responsibility for the child; and

(b) have the power (subject to the following provisions of this section) to determine the extent to which

(i) a parent, guardian or special guardian of the child; or

(ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for him.

(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.
[…]'

Hayden J also noted the obligations placed upon a local authority in respect of a looked after child under section 22 CA 1989:

'(3) It shall be the duty of a local authority looking after any child—

(a) to safeguard and promote his welfare; and

(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.

[…]

(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—

(a) the child;

(b) his parents;

(c) any person who is not a parent of his but who has parental responsibility for him; and

(d) any other person whose wishes and feelings the authority consider to be relevant,
regarding the matter to be decided.

(5) In making any such decision a local authority shall give due consideration—

(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;

(b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and

(c) to the child's religious persuasion, racial origin and cultural and linguistic background.

[…]'

Rejecting the reasoning of Re SL Hayden J held that '(v)accinations are not, in my view, properly characterised as 'medical treatment'. They are a facet of public preventative healthcare intending to protect both individual children and society more generally' [12]. Moreover contrasted with issues coming before the Family Division concerning 'life and death,' Hayden J considered that vaccination lies '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' [14].

Though the judge granted declarations in the alternative the impact of the decision on the scope of section 33(3) CA 1989, rejecting the reasoning of Re SL, was of such clear significance that Hayden J granted permission to appeal to allow the Court of Appeal to resolve the conflict of authority.


The decision of the Court of Appeal

Giving the judgment of the Court, King LJ held that the question of whether vaccinations are "medical treatment" or a "facet of public preventative healthcare" is irrelevant [84]. It is the relative seriousness or gravity of a particular decision that matters [83]. The court therefore departed from that aspect of Hayden J's analysis [84]. The Court held that because vaccinations are not a grave issue of the kind where a local authority would be expected to make an application to court in the event of parental objection [85].

Importantly, King LJ held that a local authority could, in these circumstances, make the decision to vaccinate of its own volition pursuant to s.33 CA 1989 where satisfied of the appropriateness of that course; and rejected an approach requiring an application pursuant to the inherent jurisdiction on the basis that such an application is neither necessary nor appropriate in the context of the clear medical and scientific evidence; the scarce resources of local authorities; and the pressure of "urgent and serious" work upon the Family Division [104].


The significance of the decision

The case is significant on its own terms. Subject to any possible appeal, the case resolves the power of a local authority to overrule parents on the issue of vaccination, if they consider it to be in the best interests of a particular child. Importantly, as King LJ notes, that authority applies equally to a child subject to an interim care order [25, see also section 31(11) CA 1989]. Moreover, the analysis of section 33(3) provided by the Court of Appeal establishes a broadening of local authority responsibility in arenas which, though important, 'cannot be regarded as being a 'serious' or 'grave' matter'. [104] The effect of the judgment will be to pass the burden of bringing proceedings onto the parent seeking to resist vaccination though, as King LJ notes, any application for an injunction under section 8 of the Human Rights Act 1998 is likely to fail without 'cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations' [102].

On the question of vaccination itself the judgment represents a robust and powerful judicial endorsement of wisdom and efficacy of immunisation, at least (as King LJ points out [102]) on the current scientific evidence available. Discussion of the future availability of a Covid-19 vaccination has once again focussed attention on rates of vaccination which, although recovered from their lowest ebb post-Wakefield, have still not fully regained the ground lost prior to his findings being thoroughly deconstructed. It can only be hoped that the Court of Appeal's intervention is a positive contribution to the wider public understanding of the public health benefits of vaccination.

In the Family Court's consideration of proportionality (particularly in decisions to which the welfare checklist does not apply) Re H is a further reinforcement of the applicability of the test set out in the judgments of Lords Sumption and Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700. The test has now been applied in the context of secure accommodation orders (Re B (Secure Accommodation Order) [2019] EWCA Civ 2025), forced marriage protection orders (K (Forced Marriage: Passport Order) [2020] EWCA Civ 190), and now in respect of consent under section 33(3) CA 1989. The decision of the Court of Appeal on police disclosure in M (Children) [2019] EWCA Civ 1364 now stands as a notable anomaly.

Perhaps the most important additional impact will be felt in the private law arena. Whilst the judgment does not purport to establish new authority in disputes between parents it lays down a clear marker. As King LJ notes:

'93. 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. […]'

How quickly the Court of Appeal has an occasion to consider whether 'time has moved on' in private law applications is difficult to predict but it may be that disputes over the administration of a future Covid-19 vaccination – especially with its inevitable novelty –  provide such an opportunity.