Vaccinations have long been a sore point in family law litigation, and as soon as the Government decided that the Covid vaccine was safe and medically recommended to prescribe to children, it was always going to be the subject of litigation.
Where children are in care, can the child’s wish to have the vaccine override the parents opposition, can the Local Authority authorise the vaccination where the parent objects?
The High Court have given a very clear decision – one which may not be supported by everyone, but it is such a divisive topic there was never going to be a decision to please everyone.
https://www.bailii.org/ew/cases/EWHC/Fam/2021/2993.html
C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021)
In short :-
a) For MOST cases, the LA can consent under s33 where the child is subject to a Care Order or Interim Care Order. There might be some cases where the child’s individual medical history means there might be risks over and above the general population which if ‘grave’ should be a case where the LA asks the Court to decide.
b) If the parent objects, they have the ability to make an application under the Inherent Jurisdiction to prevent the vaccination
c) The LA DO need to do an individual assessment for each child as to whether the vaccination should proceed under s33 or be the subject of a Court application
Accordingly, applying the principles articulated by the Court of Appeal in Re H, I am quite satisfied that under s.33(3)(b) of the Children Act 1989 a local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when (i) such vaccinations are 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.
In those circumstances it is unnecessary for me to exercise the inherent jurisdiction, but had it been necessary I would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings.
S. 33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case. Firstly, it is acknowledged that local authorities should not rely on s.33(3)(b) in relation to grave decisions with enduring or profound consequences for the child. I cannot discount the possibility that an individual child’s circumstances might make such a decision “grave”. Secondly, pursuant to s.33(4) a local authority must make what has been termed “an ‘individualised’ welfare decision in relation to the child in question prior to arranging his or her vaccination.” (per King LJ, Re H at [33]). Thirdly, as King LJ observed in Re H at [99] in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication.
Nevertheless, in the great majority of cases involving looked after children, no application will need to be made by the local authority to the court in respect of decisions to proceed with Covid-19 and/or flu virus vaccinations provided under a national programme, even when there is parental objection.
suesspiciousminds 