This month, we look at a recent (November 2021) High Court judgment which considered the scope of local authority powers in relation to arranging and consenting to COVID-19 and flu vaccinations for children in care whose parents oppose these vaccines. The judgment contains a useful analysis of Section 33 of the Children Act 1989 (effect of care order) and relevant case law and sets out the principles for decision-making not only in relation to the COVID-19 and flu vaccines but all routine vaccines available to children and young people. It also addresses the importance of considering children’s views and wishes in this context.
High Court rules local authorities can use Children Act 1989 powers to arrange and consent to COVID-19 and flu vaccinations for children in care despite parental objection
This judgment concerns a 12-year-old looked-after boy referred to in the judgment as C. In September 2021, C informed his social worker and his mother that he wished to receive the COVID-19 and flu vaccines. In light of C’s mother’s unequivocal objection to both vaccines, and the absence of previous case law addressing these specific vaccination programmes, the local authority looking after C made an application to the High Court asking for guidance.
The court examined two key questions:
- Can a local authority use its powers under Section 33 of the Children Act 1989 to arrange and consent to COVID-19 and flu vaccinations for a child it is looking after in situations when one or both parents object?
- If Section 33 precludes a local authority from doing so, is it nevertheless in the child’s best interests to have these vaccinations and, if so, should vaccinations be authorised using the inherent jurisdiction of the High Court?
The court concluded that “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”.
Background
COVID-19 vaccinations were made available to children aged 12-15 years in September 2021, and in October 2021 all children in school years 7 to 11 were also offered the flu vaccine.
C, who had been in local authority care since 2015, expressed a wish to be vaccinated with the COVID-19 and winter flu vaccines and both the local authority and C’s guardian (appointed after the local authority had applied to the High Court) were supportive of this, considering the vaccinations to be in his best interests. While C’s father expressed his support, his mother was strongly opposed to both vaccines. She contacted children’s social care to state her opposition and later submitted a signed ‘Vaccine Refusal Declaration’. C’s mother’s opposition was not connected to any individual health needs of C but general safety concerns and her disbelief that the national programmes of vaccination were based on sound evidence.
The local authority’s health advisor for looked after children confirmed to C’s social worker “that there were no medical issues specific to C which raised concerns about the administration of the COVID-19 vaccine”.
During a meeting with his guardian, C expressed his frustration with his mother’s stance and showed an understanding of the risks and benefits of the vaccines, and a clear wish to go ahead with the flu and COVID-19 vaccinations. He was particularly concerned about the safety of a disabled child whom he lived with, and the risk of infecting them.
The legal framework
- Children Act 1989
Broadly speaking, Section 33 of the Children Act 1989 concerns the effects of a care order. Subsections 33(3)-(4) are of most relevance in C’s situation.
Section 33(3)(b) states that while a care order is in force, the local authority designated in the order to look after the child has parental responsibility for that child and has the power to define (“determine”) the extent to which other persons with parental responsibility can exercise parental responsibility for the child. This means that by virtue of Subsection 33(3)(b) local authorities have the power to limit the use of parental responsibility by others, including the child’s parents. This can involve, for instance, overriding parental objections to a specific decision (unless the law says otherwise).
This power is not absolute, however, and Section 33(4) prohibits local authorities from limiting the exercise of parental responsibility by others unless it is necessary to safeguard or promote the child’s welfare. (There are other exclusions that apply but are not relevant in C’s situation, such as changing a child’s name or their religion, taking them out of the country and consenting to adoption or the appointment of a guardian – see Subsections 33(6)-(7)).
Moreover, the courts have defined further limitations on the use of the powers set out in Section 33(3)(b) through case law.
- Relevant case law
In 2020, in Re H, which concerned the power of local authorities to consent to routine vaccinations for children in care despite parental objection, the Court of Appeal confirmed that local authorities should not use Section 33(3)(b) to override the views or wishes of a child’s parent in serious or grave matters with profound or enduring consequences for the child:
“… 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”.
In Re H, the Court of Appeal also confirmed that in the context of vaccinations for children in care where parents object, local authorities must make ‘individualised’ welfare decisions in each case before arranging any vaccinations.
The conclusions reached by the Court of Appeal in Re H were that:
- Although vaccinations are not mandatory, the scientific evidence shows “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”.
- Section 33(3)(b) Children Act 1989 gives local authorities the power to arrange and consent to vaccinations for children in care “where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents”.
- Routine vaccinations are not ‘serious’ or ‘grave’ matters, “except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated”.
- “Parental views regarding immunisation must always be taken into account” but the strength of the parental view shall not be the deciding factor (unless the view has a real bearing on the child’s welfare).
However, Re H did not concern COVID-19 or flu vaccinations (which were not at the time part of national vaccinations programmes for children). Moreover, in Re H the Court of Appeal did not consider the issue of children’s own views about receiving routine vaccinations.
In Gillick v West Norfolk and Wisbech Area Health Authority, the House of Lords (the predecessor to the Supreme Court) established the ‘test of competence’ for a child under the age of 16 to make decisions (i.e. having sufficient understanding, intelligence and maturity to comprehend fully what is proposed and what it involves). Subsequent case law further defined ‘Gillick competence’, by confirming that ‘Gillick assessments’ must be ‘child-specific’ and ‘decision-specific’ and reminding us that the courts can override the decisions of ‘Gillick competent’ children.
(You can read our summary of the Gillick case, including the meaning of ‘Gillick capacity/competence’ and ‘Fraser guidelines’ here).
The court’s decision
The court examined the materials produced by C’s mother in support of her objection to the vaccinations but dismissed it as “devoid of evidence”, describing some of it as “anti-COVID-19 vaccination propaganda”.
The court concluded that the principles set out in the Re H judgment apply to the COVID-19 vaccination for 12-15-year-olds and the winter flu virus vaccination for children in school years 7-11. The fact that vaccines are not risk-free does not necessarily mean they are not in the best interests of children. A decision for a child to undergo standard or routine vaccinations that are part of national vaccination programmes cannot be considered as “grave” and having “profound or enduring consequences for the child” unless the child’s individual circumstances indicate otherwise.
Importantly, even though in C’s case a Gillick assessment was not considered necessary, the court acknowledged that “the view of a Gillick competent, looked after child of C’s age (12) deserves due respect when considering any question of their best interests”.
Finally, the court clarified that the exercise of the inherent jurisdiction of the High Court is not necessary in similar cases because the Children Act 1989, applied in line with the principles set out in case law (Re H), authorises local authorities to act despite parental objections:
“… 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.”
You can read the full judgment (dated 9 November 2021) here: [2021] EWHC 2993 (Fam)
Learn more: You can learn more about ‘Gillick capacity/competence’ in the December 2021 issue of our legal digest, Section 33 of the Children Act 1989 in the June 2021 issue (the EU Settlement Scheme and duties towards children in care and care leavers), and about the inherent jurisdiction of the High Court in the August 2021 issue. Advocates supporting children and young people who lack capacity due to a disability may also find a recent judgment of the Court of Protection useful ([2021] EWCOP 65). In it, the Court of Protection authorised a COVID-19 vaccination for a 17-year-old looked-after boy, referred to in the judgment as IOSK, who lacked capacity to consent to the vaccination due to autism and severe learning disability. The vaccine was considered in his best interests by the local authority looking after IOSK and the Court of Protection agreed, despite both parents opposing the vaccine. Having considered obligations towards IOSK under Section 1 and Section 4 of the Mental Capacity Act 2005, relevant case law and the evidence submitted to the court, the court concluded that, “provided that the process is undertaken with full regard to IOSK’s individual needs as summarised in the written plan”, the potential benefits of the vaccination for IOSK significantly outweigh the possible risks, making it in his best interests to receive it. The steps set out in the vaccination plan included: opportunity for IOSK to familiarise himself with the vaccination venue; support for IOSK from staff who are familiar with him and with his ways of expressing himself; no restraint or sedation should be used to carry out the vaccination; monitoring for signs of distress and discomfort after the vaccine (see ‘IOSK COVID-19 VACCINATION PLAN’ at the bottom of the judgment).
You may also find the following Family Law Week judgment summaries useful: Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664 (the procedural route when the vaccination of a child in care is disputed); and C (Children) [2016] EWCA Civ 374 (Use of inherent jurisdiction to sanction local authority’s limitation of mother’s parental responsibility to choose children’s forenames).