Child of Anti-vax Mother Can Be Vaccinated

In C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam),  a private case before Mr Justice Poole, at the Family Division of the High Court sitting in Grimsby on 4.11.21, the court ruled that a 12 year old boy in local authority care can be vaccinated against Covid-19 despite his mother’s objections.  This was said to be the first case of its kind.

The boy, referred to a ‘C,” cannot be identified. He has been a ‘looked after child’ after the Local Authority brought care proceedings and obtained a care order for him in 2015.   C wanted the winter flu and Covid vaccines. His father and the local authority both supported him, but  his mother objected.  The case of has been reported on the British and Irish Legal Information Index (‘BAILII’) as:  https://www.bailii.org/ew/cases/EWHC/Fam/2021/2993.html

The local authority, who had parental responsibility for C under section 33 of the Children Act 1989,  consented to C receiving both vaccines.  It was in the process of arranging for the boy to receive them when the mother objected. Her objections were said to be implacable.

In a previous case, Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664,  the Court of Appeal 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.  But this legal point had never been tested in relation to the Covid-19 or winter flu vaccines.  (A link to the case of Re H (A Child) (Parental Responsibility: Vaccination) can be found at  https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.html

At the beginning of the hearing the mother, who had difficulty obtaining a solicitor to assist her, applied for an adjournment in order that she could seek legal representation and expert evidence. The judge refused her application, saying that expert evidence was not necessary in order to resolve the proceedings justly, and that her Article 6 rights to a fair hearing under the Human Rights Act 1998 were met by her being able to present her case, and that adjourning the proceedings would be disproportionate, as there was no certainty she could obtain a solicitor within a reasonable period of time.  (For the Human Rights Act 1998 see https://www.legislation.gov.uk/ukpga/1998/42/contents).

Children aged 12 to 15 have been able to obtain a Covid vaccine since 12.9.21.  A week later the boy told his mother he wanted the vaccine, and told his social worker the following day.  The mother quickly sent the local authority a ‘vaccine refusal declaration’ signed by her, leaving the local authority no option but to issue proceedings for permission to vaccinate the boy.

The UK Health Security Agency guidance said the UK’s chief medical officers had all agreed that vaccinating 12 to 15-year-olds would provide young people with “good protection” against severe illness, and should also help reduce the need for young people to have time off school and reduce the risk of the spread of Covid in schools, the guidance said.

The mother argued that, although C had no underlying health conditions, he should not receive the Covid vaccine until there was compelling evidence that it was safe and effective.  She considered it to be unsafe, and objected to the winter flu vaccine being given at the same time for similar reasons.  She asked the court who would be responsible if C suffered an adverse reaction, including fatal complications following vaccination, because she would hold them responsible.  The mother did not accept that either vaccine would be effective in protecting C or other children. She did not accept that the decisions about the national programmes of vaccination were based on sound scientific evidence.

A Guardian had been appointed to present the child’s views to the court.  She interviewed C and told the court he was frustrated by his mother’s attitude, and regards his mother’s opposition as not being very “smart”.  The Guardian said C had weighed up the evidence about the vaccines, and had reached a settled view that he wishes to have them both.  He was particularly concerned not to infect a disabled child that lived with him in his current local authority placement. The Guardian was satisfied that C understood the decision about vaccination and had considered the pros and cons for himself carefully.

The judge declined to consider the merits of the Covid and winter flu vaccines, as they had all been approved by the Government under a national programme.  He allowed for the possibility that there may be real factors in an individual child’s situation that could be sufficient reason to challenge whether that child should have the vaccinations.  But no such factors were present in this case.

The judge also allowed for cases where the child concerned was legally competent to make his or her own decisions about vaccines, ‘Gillick competence’ under a test set out in the case of. Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1AC 112. (Link to Gillick https://www.bailii.org/uk/cases/UKHL/1985/7.html.)  The decisions of such a Gillick competent child can only be overridden by the court in certain circumstances.

The judge held that in the absence of any factors of substance that might realistically call into question whether the vaccinations are in an individual child’s best interests, decisions for the child to undergo standard vaccinations that are part of national vaccination programmes are not to be regarded as “grave” decisions having profound or enduring consequences for the child.

The judge said in closing 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.

Media coverage:

https://www.standard.co.uk/news/uk/justice-poole-high-court-court-of-appeal-b965519.html

https://www.bbc.co.uk/news/uk-england-humber-59247517