Whether to vaccinate your children or not can be hot topic for some parents. Given that the search is on for a vaccination for COVID19, will we see cases before the court where parents can’t agree about whether to vaccinate their children?
A timely case on the topic comes from the Court of Appeal. This is the case of re H (a child)(parental responsibility: a vaccine)  EWCA Civ 664.
The case really was about what jurisdictional route a local authority could or should use if they wanted to vaccinate a child where they had a care order for the child and the parents did not want the child to be vaccinated.
The case becomes so much more than that though and it is an interesting read. The judge drew a distinction between cases where parents are in dispute over whether a child should be vaccinated and those cases where the local authority want to vaccinate a child and the parents do not.
With cases where the parents are in dispute and there is no involvement of the local authority, both parents have the same rights as the other so if they cannot agree on how to exercise their parental responsibility, then the court has to make a decision.
In cases with a local authority holding a care order (which gives them parental responsibility), the local authority are able to override the parents in exercising parental responsibility but if the decision is about a ‘grave and serious issue’ then the local authority should ask the court to sanction the route the local authority wants to take.
So, is vaccination of a child a ‘grave and serious issue’? Lady Justice King gives the lead judgment and recaps on the MMR vaccine ‘scandal’ and the current scientific thinking. It is a really good summary of what has happened in respect of the vaccination of children and where we are now.
What Lady Justice King says at paragraph 104 is:
Pulling together the threads of this judgment, I have concluded that:
i)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 accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.
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. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.
iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.
So, the headlines are:
- Vaccination is in the best medical interests of a child. That means if you are arguing against vaccination as a point of principle then you are going to have an uphill struggle.
- Vaccinations are ‘not serious or grave’ and basically the message is that the local authority can decide to vaccinate a child that they hold a care order for (interim or full care order) without needing to get permission from the court – and all the expense and time of that – even if the parents to do not agree
- The local authority should ask the parents for their views but they can override them. Basically, there has to be good health reasons as to why the child should not be vaccinated.
Extending that on to parents disagreeing, given that the court is saying that vaccination is in the best medical interests of a child, a parent wanting to stop another parent from having a child vaccinated definitely has an uphill struggle and that is the advice that should be given to parents. The judge says:
This is not the case for this court to consider whether immunisation should properly continue to be a matter which must be brought to court where there is a private law dispute between the parents.
Now, I read this as a mild warning to solicitors and others that the court is thinking they should not be seeing applications about vaccinations unless there is a really good health reasons and that parents of children (where the local authority are not involved) should get on and resolve the issue themselves – whilst being aware that the court is firmly behind it being in the best interests of a child to be vaccinated. So, better make sure your application is for a good reason, basically.
Interestingly, the court said that refusal to vaccinate a child (on its own with no other issues) would not give grounds for care proceedings. Refusal to vaccinate might be a strand of lots of issues of neglect but it is not ‘significant harm’ on its own. So, if the parents are agreed that the child should not be vaccinated and there is no involvement of the local authority, then that is their choice. The court only gets involved when there is a dispute between parents or the local authority step in – so if neither of those things are happening and the parents are agreed then fine.
I would say that the timing of this decision could be fortuitous – bearing in mind the situation with COVID19 and the search for a vaccine. Just the right time to head off lots of applications to the (already busy) courts from parents?…….
If you need help with issues about your children, contact me.