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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2021/2993.html Cite as: [2021] EWHC 2993 (Fam) |
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FAMILY DIVISION
SITTING AT GRIMSBY
B e f o r e :
____________________
C (Looked After Child) (Covid-19 Vaccination) |
____________________
for the Applicant
The First Respondent in person
The Second Respondent in person
Miss Blackmore (instructed by Zoe Atkinson of Lockings Solicitors) for the Third Respondent
Hearing dates: 4 November 2021
____________________
Crown Copyright ©
Mr Justice Poole :
Introduction
i) The mother's opposition to the vaccines being given now to C – her opposition to the Covid-vaccine being given to him now is implacable and very strongly put.
ii) Although the Court of Appeal in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 held that 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 point has not been tested in relation to the Covid-19 or winter flu vaccines.
iii) If it is wrong about its power under s.33 of the Children Act 1989, the Local Authority invites the court to permit it to apply for the court to exercise its inherent jurisdiction to declare that it is in C's best interests to have the vaccinations.
i) Does a Local Authority with a care order have the right under s.33 of the Children Act 1989 to exercise parental responsibility by arranging for and consenting to vaccinations for the child for Covid-19 and/or the winter flu virus notwithstanding parental objection?
ii) If not, is it nevertheless in C's best interests to have one or both vaccinations? If so, should the court exercise its inherent jurisdiction to authorise the vaccinations?
Background
4.12.15 | By court order C was placed in the care of the Applicant Local Authority, where he remains. |
13.9.21 | Upon it being reported nationally, on 12.9.21, that children aged 12 to 15 would now be offered the Covid-19 vaccine, the mother contacted Children's Social Care to inform them that she would be opposed to vaccination of C. |
22.9.21 | During supervised contact, C informed his mother that he would wish to have the Covid 19 vaccine. |
23.9.21 | C confirmed, to his social worker, his wish to be vaccinated. |
23.9.21 | The mother wrote to the Local Authority enclosing a signed 'Vaccine Refusal Declaration'. |
25.10.21 | The Local Authority issued its application for a declaration under the inherent jurisdiction of the High Court. |
25.10.21 | Directions upon issue by His Honour Judge Whybrow including making C a party to the application and the appointment of a Children's Guardian. |
27.10.21 | The Child Looked After Health Advisor informed C's social worker that there were no medical issues specific to C which raised concerns about the administration of the Covid 19 vaccine. |
The Law
(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.
The exceptions to the general power set out in other sub-sections of s.33 do not apply to the present case. King LJ observed in Re H at [27] that, although the power granted to local authorities by ss. 33(3) appears to be otherwise unlimited,
… local authorities and the courts have for many years been acutely aware that some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) to override the wishes or views of a parent. Such decisions have chiefly related to serious medical treatment, although in Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 (Re C), the issue related to a local authority's desire to override a mother's choice of forename for her children. The category of such cases is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child.
Thus 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.
i) 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.
ii) 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.
iii) 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. To do so 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.
iv) 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.
…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. [emphasis in the original]
The underlying principle of the law … is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. …
I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.
It is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.
The Mother's Case
The Evidence
UK Health Security Agency, Guidance, COVID-19 vaccination programme for young people: guidance for parents. Updated 19 October 2021:
The UK's Chief Medical Officers (CMOs) all agree that 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.
Vaccinating 12 to 15 year olds should also help to reduce the need for young people to have time-off school and reduce the risk of spread of COVID-19 within schools. The COVID-19 secondary schools vaccine programme should therefore provide protection to young people and reduce the disruption to face to face education. This will help to keep young people emotionally well and happier and this was an important consideration for the CMOs.
And in relation to the winter flu vaccination, the Local Authority directs the court's attention to UK Health Security Agency, Guidance, Flu vaccination programme 2021 to 2022: briefing for schools - October 2021 update, updated 13 October 2021. It begins,
For the 2021 to 2022 flu season, the flu vaccination programme that already includes all children in primary school will be expanded to additional children in secondary school so that those in years 7 to 11 will now be offered flu vaccination. This significant expansion in the programme is part of the government's wider winter planning to reduce flu levels in the population, and therefore the potential impact on the NHS, when we are likely to see both flu and coronavirus (COVID-19) in circulation.
The guidance continues,
Why is flu vaccination important for children?
Flu is unpredictable and the levels of flu activity vary each year. Some years are much worse than others. For instance, in 2014 to 2015, a bad flu year, there were 28,000 deaths. There are several strains of the flu virus that cause flu and virus mutations also occur.
Flu can be a serious illness that leads to complications like bronchitis and pneumonia, and painful ear infections in children. Children under the age of 5 years old have the highest rate of hospital admission of any age group.
The main purpose of the programme is to help protect children themselves and to stop them spreading flu to their families and the wider community, given the role that children have in transmission of the flu virus. Those most at risk from the complications of flu (such as pregnant women, older people, and those with underlying health conditions) are also offered flu vaccination, and it is also free for anyone aged 50 years old and over this year.
Conclusions