username

password

Established
Housing Law WeekBerkeley Lifford Hall Accountancy ServicesAlphabiolabs

Home > Judgments

Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)

High Court decision in respect of the approach to COVID-19 and winter flu vaccinations for looked after children.

___

The Application

C, who was almost 13, was the subject of a care order. He wished to have the COVID-19 and winter flu vaccinations. The LA and CG agreed it was in his best interests. F supported C. M strongly opposed C being vaccinated on safety grounds. She did not accept that the vaccines would protect children or that the national vaccination programmes were based on sound evidence. 

The LA applied to the High Court for confirmation that it was entitled, pursuant to s.33 CA 1989, to exercise its PR to arrange and consent to C's vaccination. In the alternative, the LA sought a declaration under the inherent jurisdiction that it was in C's best interest to have the vaccinations.   

Decision

Poole J considered and applied the Court of Appeal decision in Re H (Parental Responsibility: Vaccination) [2020] EWCA Civ 664.  He determined that the principles in Re H applied to the COVID-19 and winter flu vaccination programmes. In the absence of contraindications for a particular child, decisions for a child to undergo standard or routine vaccinations as part of national programmes are not to regarded as 'grave' decisions. 

Poole J noted one qualification to the principles in Re H in respect of Gillick competence. In Re H, the Court of Appeal was concerned with very young children rather than those of secondary school age.  If a Gillick competent child refused vaccination, it would raise different questions about whether the LA could override the child's decision and whether the issue should be brought before the court. Poole J did not determine this issue as it would have been academic in the circumstances of C's case. 

Accordingly, under s.33(3)(b) CA 1989, an LA with a care order (or interim care order) can arrange and consent to a child in its care being vaccinated for COVID-19 or the winter flu virus notwithstanding the objections of the child's parents where: (i) the vaccination is part of an ongoing national programme approved by the UK Health Security Agency); (ii) the child is either not Gillick competent or is Gillick competent and consents; and (iii) the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child's welfare.  There is no requirement for any application to be made for the court to authorise such a decision before it is acted upon. As per Re H, it would be for the parent to make any application to seek to prevent the vaccination. 

It was not appropriate for the court to embark on an investigation of the merits of whether the national programmes of COVID-19 and winter flu vaccination of children are justified as being generally in the best interests of children in those age range. Expert evidence in such cases might only be considered necessary if (i) there is a well-evidenced concern that a vaccine is contraindicated for a particular child, or (ii) 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.  Mere assertion that a vaccine is unsafe, however strongly expressed, is not sufficient for the court to require expert evidence to assist the court.

Poole J concluded by reiterating that s.33(3) CA 1989 does not give an LA carte blanche to proceed to arrange and consent to vaccinations in every case.  If vaccination would have enduring or profound consequences for the child, it may make the decision to vaccinate 'grave' and thus require the LA to apply to the High Court.  Further, pursuant to s.33(4) CA 1989, the LA must make "an 'individualised' welfare decision in relation to the child in question prior to arranging his or her vaccination." (per King LJ in Re H). 

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII