Looked after children and Covid-19 vaccination

Josie Canham-Williams summarises the first case to address the administration of the Covid-19 vaccination for 12-15 year olds and the winter flu vaccination for children in school years 7 to 11.

Re: C (Looked after Child) (Covid-19 Vaccination)

‘…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’ [26]

The case of Re: C (Looked after Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) concerned whether the applicant local authority (LA) had the power to arrange and consent to the administration of the Covid-19 and winter flu vaccines to C, a 12 year old child looked after, notwithstanding the firm objections of his mother. C had been in the care of the Applicant LA since 2015.

C wished to be vaccinated and this was supported by his Guardian, his father, and the applicant LA who considered the vaccines to be in C’s best interests. C’s mother, the First Respondent, was vehemently against her son being given the Covid-19 vaccine. C did not have any known health conditions and his mother was clear that her objections to the vaccine would ‘apply to any child, and any responsible parent faced with a decision whether to have the vaccines in question‘ [14], thus giving a particular national relevance to this judgment.

By way of background, on 12 September 2021, it was announced that the Covid-19 vaccine would be offered to all children aged 12-15. The following day, C’s mother informed Children’s Social Care that she would be opposed to the vaccination of C, and on 23 September 2021 wrote to the LA with a signed ‘Vaccine Refusal Declaration’. The LA then issued an application for a declaration under the inherent jurisdiction of the High Court. During this time, C had informed his mother, his social worker, and his Guardian that he wished to have both the Covid-19 and the winter flu vaccines, expressing a particular concern not to infect a disabled child in his current placement [18].

The applicant LA was of the opinion that it had the right, pursuant to section 33 of the Children Act 1989, to permit the administration of the vaccines, and sought a declaration of that lawful authority. The LA was also clear, however, that if the court ruled that it did not have such a power under section 33, it would have sought to apply for a declaration under the inherent jurisdiction to permit the administration of the vaccines, being in C’s welfare interests.

Poole J set out the power of a LA under section 33 CA 1989 at [7] and, following King LJ’s observations in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, noted that: a ‘local authority should not use s.33(3)(b) to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child’.

In Re H, at [104], King LJ concluded that:

‘…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.‘

Although in Re H the Court of Appeal held that a LA with a care order can arrange and consent to a child in its care being vaccinated without needing to refer the matter to the court, Re H only concerned the specific immunisations recommended for children as set out in the routine immunisation schedule found in the Green Book: Immunisation against infectious disease. Re H did not concern the Covid-19 or winter flu vaccines, nor did it concern a 12-year-old child with their own views about the proposed vaccinations [9].

The issue of whether C was Gillick competent was touched upon in paragraphs [12] and [13] of the judgment, in which Poole J outlined the test of competence for a young person to make decisions as set out in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112. The court did not consider it necessary in this case to undertake an assessment of C’s Gillick competence, given that there was no conflict between of C and the LA. The judgment was clear, however, that ‘the view of a Gillick competent, looked after child of C’s age deserves due respect when considering any question of their best interests’ and if ‘such a child refused vaccination, that would raise different questions, namely whether the local authority with parental responsibility could override the child’s decision and whether the issue should be brought before the court’ [22]. For the sake of a short and clear judgment, Poole J did not attempt to answer these questions.

Poole J also referred to the judgment of M v H and PT [2020] EWFC 93 in which MacDonald J made obiter comments relating to the Covid-19 vaccination programme. At [4], Macdonald J stated that:

‘…it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child’

­C’s mother adduced items of ‘anti-vaccination propaganda’, and Poole J ruled that the material presented was ‘devoid of evidence or even rational argument, and does not point to any peer-reviewed research evidence that raises significant concern about the efficacy or safety of the vaccine.’ [17]

The LA relied almost entirely on published guidance on the Covid-19 and winter flu vaccines from the government and public bodies, specifically the UK Health Security Agency (successor body to Public Health England). The national guidance relied upon is helpfully outlined in the judgment at [15].

Conclusions

In a clear judgment which is likely to serve as guidance for other LAs, Poole J ruled:

‘In my judgement, the principles set out by the Court of Appeal in Re H (above) apply equally to both the Covid-19 vaccination for 12-15 year olds and the winter flu virus vaccination for children in school years 7-11, as they do to the specific childhood vaccinations considered in that case. Like the standard vaccinations for infants, the Covid-19 and winter flu virus vaccinations are now part of national programmes of vaccination for children approved by the UK Health Security Agency, the successor body to Public Health England. The court can be satisfied, without the benefit of expert evidence, that the decisions to include the vaccinations in national programmes are based on evidence that they are in the best interests of the children covered by the programmes. Given the oral submissions that I received from the mother it is worth emphasising that vaccination programmes may be in the best interests of children even though administering the vaccines is not free from risk. [20]

In the absence of any factors of substance that might realistically call whether the vaccinations are in an individual child’s best interests, standard or routine vaccinations are not to be regarded as “grave” decisions having profound or enduring consequences for the child.’ [21]

Poole J was satisfied that the LA did have the power under section 33 to arrange and consent to a child in its care being vaccinated against Covid-19 and winter flu vaccines to C, 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 LA 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.’ [23]

It was therefore unnecessary for the court to exercise the inherent jurisdiction, but Poole J stated in obiter that should it have been necessary, he ‘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’ [24].

Josie Canham-Williams is a pupil barrister at Spire Barristers.

Sarah Blackmore appeared on behalf of the Respondent Child, and James Goodwin appeared on behalf of the applicant local authority. Both are at Spire Barristers.

Download the full judgment: Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)