This is a Court of Appeal case which follows up from the Hayden J decision in the cestui que vie case (remember, all of us are legally dead because we’re all lost at sea) about vaccination.
As a super-quick bullet point, we had a MacDonald J decision that if a parent disagreed with the child being vaccinated then the LA should NOT use their powers under a Care Order to agree to it and should instead come to Court, and then this later decision from Hayden J that the LA SHOULD use their powers and should NOT come to Court. (Legally up until this Court of Appeal hearing that meant legally that the LA SHOULD use their powers but any High Court Judge could overrule that)
Re H (A Child : Parental Responsibility : Vaccination) 2020
Whilst this decision was about the MMR vaccine (which in the minds of some people is controversial because of the now discredited Andrew Wakefield ‘research’ linking it to autism), it has wider application and of course it is entirely possible that whether or not children be given a vaccine for COVID-19 if one is found will become a very hot issue.
The Court of Appeal run through all of the relevant research and science on vaccinations and say definitively that the practice of getting an expert to report each and every time this arise is no longer needed – unless there are specific issues or vulnerabilities for the SPECIFIC child, the Court should approach the science as settled that vaccines are safe.
(On the one hand, oh god my comments on this are going to be lively, on the other, I might get Jenny McCarthy talking to me, which my 20 year old self would be very jealous about. Let’s say, to keep it simple, that I have ABSOLUTELY NO views on this myself and have no interest in discussing the Wakefield stuff or anti-vaxx generally, I’m just reporting the case)
- It follows that, no matter what legitimate concerns parents may have had following the publication of Dr Wakefield’s discredited paper, there is now no evidence base for concerns about any connection between MMR and autism. On the contrary the evidence, as set out in the unchallenged report of Dr Douglas in this case, overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
- I have, in (relatively) short form, rehearsed the history in relation to the MMR controversy and summarised Dr Douglas’ mainstream analysis in relation to the other vaccinations which are habitually given to children. I do so as it is my hope that it will serve to bring to an end the approach which seems to have grown up in every case concerning vaccinations, whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being “necessary to assist the court to resolve the proceedings” (FPR 2010 r.25.4(3)).
- In my judgment, 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, as was the case in relation to one specific vaccine in Re C and F (Children)  EWHC 1376 (Fam) (Re C and F) (see paragraph ).
- I should be clear that I am here dealing with the purely medical issues which may arise in any specific case, and am not seeking to narrow the broader scope of a child’s welfare and of any other relevant considerations which it may be appropriate for a local authority or a court to take into account when considering his or her best interests when considering the question of vaccination.
On the issue of whether the LA should seek permission from the Court or use their s33 powers
- 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.
(The Court of Appeal say that in private law cases – i.e mum says no vaccine, dad says vaccine or vice versa, there’s a place for the Court in resolving those disputes)
- Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph , “in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect.” As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.
- The situation is, in my view, different in the public law sphere when a care order is in place. A care order is only made if the welfare of a child requires such an order to be made, it having been determined or conceded that pursuant to s.31(2) CA 1989, the child has suffered or is likely to suffer significant harm attributable “to the care given to him or her not being what it would be reasonable to expect a parent to give him”. In other words, the child in question has suffered (or was likely to suffer) harm as a consequence of the care given to him or her by a person with parental responsibility. It is against that backdrop that the parent of a child in care holds parental responsibility. Parliament has specifically, and necessarily, given the local authority that holds the care order, the power under s.33(3)(b) to override the views of a parent holding parental responsibility. The local authority’s view prevails in respect of all matters save those found in the statutory exceptions or where, as I identified in Re C, the decision to be made is of such magnitude that it properly falls within the provisions of s.100.
- The situation of a child in care is therefore a far cry from those cases which arise in private law proceedings where parents who share parental responsibility cannot agree on what is best for their child.
- For these reasons, I prefer the judge’s analysis in the present case to the analysis in Re SL.
- It has not been argued by Mr Bailey on behalf of the parents that allowing the local authority to consent to the immunisation would represent a disproportionate breach of their Article 8 ECHR rights. I merely say for completeness that if such an action on behalf of the local authority does represent an infringement of the parents’ or child’s rights under Art 8 ECHR, I am satisfied that, when considered through the prism of Bank Mellat v HM Treasury (No 2)  3 WLR 179 (as endorsed in a family context in Re K (Forced Marriage: Passport Order)  EWCA Civ 190 at paragraph ), any interference is proportionate.
- The position of parents
- It is axiomatic that any local authority must involve parents in decision-making and take their views into account. Section 33 CA 1989 is not an invitation to local authorities to ride roughshod over the wishes of parents whose children are in care. As was recognised by the judge at paragraph , 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.
- The conclusion I have reached in relation to routine immunisations does not in any way diminish the importance of parental views where there is a real issue about what decision will best serve the welfare of a child
The LA can use their powers under a Care Order to vaccinate, even if the parents object. If the parents feel strongly enough, they can make an application under the magical sparkle powers – inherent jurisdiction.
The Court go on to say that deciding this doesn’t give cate blanchett (yeah, I just really want my comments to blow up today) to a Local Authority where the parents are objecting to more serious medical treatment and looks at a case involving whether a child should or should not have a liver transplant.
- The distinction drawn here between parental views that are inconsistent with the child’s welfare and highly problematic cases where there is genuine scope for a difference of view remains a valuable one. It is a reminder that, while the views of parents must always be taken into account, the weight that is given to them depends not upon the vehemence with which they are expressed but upon their substance.
- As must have become clear, I do not share the inhibition felt by the judges in some of the decided cases in expressing the view that the scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated. As Theis J said in F v F:
- “With due consideration for established contraindications to vaccination in an individual case, it is otherwise in every child’s interest to be protected’
It follows therefore that in my judgment, 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.
In the analysis of all of the legal cases, the Court of Appeal note that for all the sound and fury expended on the MMR vaccine issue, there isn’t a reported case where the Court ruled against the vaccination.
- Pulling together the threads of this judgment, I have concluded that:
- 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.