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

On appeal from the High Court of Justice Family Division, McCombe, King, and Peter Jackson LJJ consider the procedural route when the vaccination of a child in care is disputed

The case concerned a child, H, in respect of whom care and placement orders had been made to the local authority in January. The parents objected to the child receiving routine vaccinations, a view driven by the belief, particularly in the case of the father, that neither the court nor the state could take decision in relation to the child.  The local authority therefore made an application. Hayden J concluded that the local authority could use their powers under s.33(3) of the Children Act 1989 to consent to the vaccinations, but that in the event that he was wrong about that, he would have made the order under the inherent jurisdiction. This was in contrast to a previous decision by MacDonald J, where it was held that the decision was of such gravity that the local authority could not properly use s.33(3). Hayden J had given permission to appeal based on this conflict at High Court level. By the time of the hearing before the Court of Appeal, the issue as to whether the child should be vaccinated had fallen away – the sole issue was the procedural route to be adopted in such cases.

The Court gave an overview of the law and the medical research in this area, with particular attention given to the now-discredited purported link between the MMR vaccine and autism. In relation to immunisations, the following conclusion was reached by Lady Justice King giving the lead judgment:

"I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). 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 and when the alleged link between MMR and autism has been definitively disproved." [85]

The Court held that the local authority could appropriately use s.33(3)(b) to make decisions about vaccinations. Medical evidence had established that vaccinations was generally in the best interests of otherwise healthy children. The judgment was however clear that it had dealt with the medical issues relevant to the issue of vaccinations, rather than broader concerns regarding the child's welfare.

The Court therefore concluded that

"…the local authority 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." [103].

Consequently, "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." [104]

The Court engaged with some of the issues regarding use of s.100 and the inherent jurisdiction in such questions, notably s.100(4), which requires the court to conclude that a child is likely to suffer significant harm if the inherent jurisdiction is not invoked. To the extent that MacDonald J had considered that a healthy child was likely to suffer significant harm without a vaccination, this could not be said to be the case for the purposes of the section. The judgment therefore cast general doubt on the ability of the inherent jurisdiction to be used by a local authority in such circumstances, and lent further support to the conclusion that consent could be given under s.33.

The case should not be read as a blanket permission for local authorities to exercise their consent in this way– an individualized analysis will need to be undertaken in each case.

The advantages of this approach, in terms of resources and time, were set out in the judgment.  Court further remarked that, whilst parental views should be taken into account, the strength of that view is not determinative unless it has a real bearing on the child's welfare. A parent could make an application to invoke the inherent jurisdiction and seek an injunction in respect of proposed vaccinations, however "an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations." [103] The judgement therefore switches the presumed burden of making an application when a dispute regarding immunisations exists between a local authority with a care order, and parents.

The above applies even if there is an interim care order, as opposed to a full care order – s.33 operates in both circumstances [25]. The judgment does not apply to similar private law disputes, however the Court noted that the approach in those cases may have to be revisited in the future.

The judgment also makes some more general remarks about the law and practice in this area:

• Counsel had not managed to find a case where an application to vaccinate had been refused. [68]

• The categorisation of vaccinations as either 'medical treatment' or 'preventative healthcare', a feature of previous judgments including Hayden J's in this matter, was not particularly helpful. The critical issue was whether immunisations should be regarded as as 'grave' or 'serious' in the context of the exercise of parental responsibility by a local authority such as to require the sanction of the court when a dispute arises. [81] [83] [84]

• Care proceedings are only appropriate in serious medical treatment cases when there are other issues involved. Where the issue is purely regarding the serious medical treatment, it would be more appropriate for the relevant NHS trust to make an application. [64] [65]. In this case, however, the position was different – care proceedings were not the vehicle used to bring the issue of immunisation to court; rather the issue arose in the context of already-completed care proceedings which had resulted in the making of care and placement orders. [66]

• Taken in isolation, failing to vaccinate is unlikely to reach the 'significant harm' threshold in s.31 of the Children Act. It may however be used as part of wider threshold allegations in relation to general neglect. [21]

• Subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications. This indicates that, in 'routine' cases, medical evidence will not therefore need to be obtained. [55]

Summary by Rebecca Davies, Barrister, Field Court Chambers

Read the full judgment of Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664 on BAILII