Children case law update: vaccinations and appeals out of time

Georgina Dalton summarises a recent Court of Appeal ruling on vaccination of children in care, and a High Court decision on an appeal out of time.

H (a child parental responsibility: vaccination) [2020] EWCA civ 664

Court of Appeal: Lady Justice King, Lord Justice McCombe and Lord Justice Peter Jackson

– A decision which confirms that s.33(3) Children Act 1989 gives local authorities the power to order vaccination of children in care without a court order.

Care and placement orders were made in respect of T (then aged 9 months), the parents of T then objected to T receiving vaccinations routinely administered to babies in accordance with Public Health England’s guidance. The local authority sought orders from the court that T be vaccinated.

The judge at first instance declared that the local authority had lawful authority pursuant to s.33(3) Children Act 1989 to consent to and make arrangements for the vaccination of T notwithstanding the objections of the parents. Lady Justice King in the Court of Appeal noted that Hayden J could have been seen to have make the order under two possible jurisdictional routes either under s.33(3) CA 1989 or by way of declaration under the inherent jurisdiction of the court (s.100 Children Act 1989). Due to conflicting High Court authority on the use of inherent jurisdiction in relation to this matter, the judge gave permission to appeal his decision.

The issue before the Court of Appeal was to identify the proper procedural route to be adopted by a local authority where a dispute in relation to vaccination arises with parents in relation to a child in their care. There was an issue as to whether it is a matter which the local authority can properly consent to or whether where a parent opposes it, the issue is of such magnitude, seriousness or gravity that it necessitates an application to the High Court for leave to invoke its inherent jurisdiction. King LJ stated that such an issue needed to be determined in light of current scientific and medical thinking related to vaccinations. The current medical and scientific evidence was carefully analysed between paragraphs 34-56 of the judgment and the current view was as follows: “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 dismissing the parents’ appeal, King LJ held that under s.33(3)(b) of the Children Act 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 the parents. It was however noted that such a conclusion does not diminish the significance of parental views where there is an issue about what decision will best serve the welfare of the child.

Further, routine vaccinations are no longer to be considered a “serious” or “grave” matter, and the burden will now fall on parents who oppose vaccination to seek relief under s.8 Human Rights Act 1998. It will not be necessary or appropriate for local authorities to refer such matters to the High Court in every case where the parent opposes. The effect therefore is that the local authority is no longer required to make an application to the High Court for permission to effect vaccinations under the inherent jurisdiction.

Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/664.pdf

Re D (A child) (Appeal out of time) [2020] EWHC 1167

High Court: Mr Justice Francis

– Judge allows appeal which is 3 years and 5 months out of time

The father in this case had not seen his child (D) for 7 years. In May 2015, the District Judge had made a finding that the father had sexually abused his daughter. In contradiction to the rule that there is a 21 day period for filing a notice of appeal, the father issued a notice of appeal 3 years and 5 months out of time. The father also applied for relief from sanctions and for permission to appeal out of time.

Counsel for mother asserted forcefully that to extend the 21 day time limit for three years and five months would render the limit so flexible that its effect would be lost and that there would be a real risk of “opening the floodgates”.

The judge said that exceptional circumstances would have to pertain for the court to contemplate granting permission. It became clear however that such circumstances existed, Mr Justice Francis found that despite the exceptional delay in appealing, the findings were so unsafe and their consequences so serious that they could not be allowed to stand.

In the fact finding hearing, the District Judge took the view that it was appropriate for the mother’s counsel to cross-examine Dr G, on behalf of the father. The Court of Appeal found this procedure to be irregular to a degree which caused injustice within the meaning of part 30 of the FPR 2010.

Francis J was satisfied that there existed compelling reasons why the appeal should be heard owing to the serious procedural irregularity which occurred in the lower court and the serious risk that the decision made was incorrect. The judge subsequently granted relief from sanctions, permission to appeal out of time, allowed the appeal and remitted the matter for re-hearing.

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1167.html

Georgina Dalton will be starting pupillage at Spire Barristers in September 2020.