High Court rejects application by mother to prevent local authority from imposing vaccinations on child in foster care

A High Court judge has rejected a mother's application, supported by the father, to prevent a local authority from imposing a programme of vaccinations on a child in foster care without their consent.

In K (A Child : permission to vaccinate) [2020] EWHC 3775 (Fam) [given ex tempore, but published this month on Bailii], the mother and father of the child, K, who was born in 2017, 'vehemently' objected to the imposition of vaccinations on their daughter. These objections were described as 'prinicpled' by Mr Justice Francis.

By reason of the interim care order that was made in 2019, the parents share parental responsibility with the unnamed local authority.

Mr Justice Francis said that K had not undergone any of the programme of vaccinations that almost all children in the UK have, and in accordance with the clear recommentations of Public Health England.

The couple objected to immunisation and inoculation of their child on three grounds: 'Medical safety', 'ethical concerns' and 'religious beliefs'.

As part of a lengthy statement from the father, the medical concerns were listed in detail. They included concerns about the supposed underreporting of serious adverse reactions to vaccination, a lack of 'post-marketing' surveillance figures defining how many children suffer adverse reactions, and fears over a lack of studies on the level of aluminium in vaccines.

The father also expressed concerns of an 'increased risk of contracting Covid-19 due to the extremely high likelihood of scheduled immunisations causing upper respiratory tract infections'.

On the first ground - medical safety - Mr Justice Francis considered the 'comprehensive document' that the father had put together.

The judge however referred to the Court of Appeal's ruling in Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664. He said: "It seems to me that the scientific objections put forward by the parents are ones to which, whilst I can have due regard and respect, but given that they are not supported by expert evidence, and given that the matter has been dealt with head-on by the Court of Appeal [...], I cannot accede to the parents' application on the basis of their suggested science."

Judge Francis then turned to the second ground in which the parents set out their ethical concerns relating to vaccines.

The concerns listed were:

1. “That vaccine ingredients involve extreme harm and cruelty to animals which are routinely hidden from the patient.
2. The use of cell lines cultivated from aborted human foetuses.
3. The potential violation of my fundamental human right to choose and to avoid a harmful medical product or procedures that involve significant damage to humans and animals alike and to withdraw my support from a product manufactured with grave indifferences to human and animal life."

Judge Francis said he had respect for those ethical concerns. "It is not for me as a judge to set out what my own ethical views are but it is appropriate that I record and that the parents hear me recording that I have respect for their ethical concerns."

The judge said that similarly the parents had set out religious beliefs. "They wish to exercise their fundamental human right to practise any religion they choose and of course that is their right and nothing that I say or do today is going to affect that right to practise whatever religion they choose."

He went on to acknowledge the skeleton argument filed by counsel on behalf of the father which asked the question: "If vaccination is sought by the Local Authority because of its shared responsibility to safeguard my daughter's health, does this mean that any parent who chooses not to vaccinate is failing to safeguard their child's health or is that parent merely exercising his or her right to freedom of choice since vaccination is not mandatory?"

Counsel also said on behalf of the father: "'Why should my daughter be vaccinated against my wishes and our family be unfairly discriminated against as a consequence of our being part of a national minority group, i.e. families with children in foster care? Why must we be subjected to these measures when they are not evenly applied across all families in the UK? How is this reasonable or proportionate?"

However, Judge Francis turned again to the judgment of King LJ in the case of Re H, and reiterated to the parents that he was bound by that decision of the Court of Appeal. He also highlighted that in that case, the decision of the Court applied equally to a child in the interim care of a local authority as it does to a child the subject of a final care order.

Justice Francis noted counsel for the local authority had pointed out the following in paragraph seven of the Court of Appeal's ruling:

"The exercise of parental responsibility under Section 33 of the Children Act 1989 is subject to several safeguards which include:

a) It is subject to the general duty to safeguard and promote her welfare.

b) Before making any decisions with respect to a looked-after child, the Local Authority must, so far as it is reasonably practical, ascertain the wishes and feelings of the child and his parent regarding the matter to be decided.

c) The Local Authority must not exercise its overriding parental responsibility unless it is satisfied that it is necessary to do so to safeguard and promote the child's welfare.

d) The Local Authority may not change a child's religion, agree to his adoption, appoint a Guardian for him, change his surname without written agreement or without going through the prescribed procedure to remove him from the UK from more than a month without written agreement."

Mr Justice Francis went on to highlight paragraph 55 of King LJ's judgment, in which she said: "in my judgement, 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 identifiable side effects".

The judge also drew on the judgment in F v F [2013] EWCH 2683 (Fam), in which Theis LJ said: "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 judgement, 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 contraindication to the administration of one or all of the routine vaccinations."

Mr Justice Francis said it was clear to him in the case that he had not had any objective medical and/or welfare evidence demonstrating a genuine contraindication to the administration to one or all of the routine vaccinations.

He added: "That judgment of King LJ was supported by both McCombe LJ and Peter Jackson LJ so it is the unanimous judgement of the Court of Appeal in May of this year. In other words, only two months ago."

Counsel for the Guardian meanwhile referred Mr Justice Francis to paragraph 20 of Re H in which King LJ said it was to her mind "self-evident that for T, as a healthy young infant, the risks contingent upon not vaccinating him significantly outweigh the benefits".

Mr Justice Francis said: "In this case it is important that I stress and it is to the parents' credit during the time of course that K was with them and now thriving in foster care that K is a thriving […] child who has met or exceeded all of the relevant milestones for a child of her age and therefore it is right that I regard K as being similar to the child T in the Re H case to which I have just referred".

The judge concluded: "I do not know whether there are some Local Authorities that would regard it as a reason for care proceedings because a child has not been vaccinated but what is absolutely clear to me is that the Court of Appeal have said that healthy children should be vaccinated. I am dealing here of course with the rights, with the welfare of a little girl […]. Her welfare is my paramount consideration.

"Of course I have regard to the Article 8 rights of the parents but as Counsel for the Local Authority reminds me, I also have to have regard to the Article 8 rights of K whose rights are independent of her parents."

Mr Justice Francis said: "Having regard to everything that has been said and to the very careful argument that has been put on behalf of the parents, I am left in no doubt at all that I should follow the clear guidance of King LJ in the case of Re H and that means that I should reject the application brought today by the parents.

"I have not done it on a narrow burden-of-proof basis. I started by saying that the burden was on them but I make it clear that I have not dealt with this on a technical basis at all. I am very firmly of the opinion that the application must be dismissed and it this were an application brought by the Local Authority for permission to vaccinate, I make it very clear, having heard and read everything as I have, I would have acceded to that application."

Adam Carey