A recent appeal heard at the High Court of Justice Family Division considered the procedure when a routine childhood vaccination is opposed by one or both parents, and found that, at least in these circumstances – yes, a child could be vaccinated against the parents’ wishes.
The case involved a child, H, who was under the care of the local authority. H was due to receive his routine vaccinations, but his parents (in particular the father) objected. The father believed that that neither the court nor the state had the authority to make the decision for the child.
Vaccination and S33 of the Children Act 1989
The local authority applied for permission from the court to vaccinate H, and it was decided by Hayden J that they could use their powers under s.33(3) of the Children Act 1989 to consent to the vaccinations. He added that had he been wrong about s.33(3) he would have made the order anyway under the existing jurisdiction. This order differed from a previous decision by MacDonald J, who held that the decision was ‘too important’ for the local authority to rely on s.33(3).
Hayden J gave permission to appeal the decision at High Court level, based on this conflict. By the time the matter was hard by the Court of Appeal, the question of whether the child should be vaccinated was no longer in dispute, but the issues surrounding the procedural route needed to be decided.
The Court looked at up to date legal and medical research – in particular the (discredited) purported link between the MMR vaccine and autism. Lady Justice King gave the lead judgment, saying:
“I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not).
“ In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved”
The Court agreed that it was appropriate for the local authority to use its authority under s.33(3)(b) to make similar decisions about routine vaccinations, and that current medical evidence suggested that vaccination was normally in the best interests of otherwise healthy children. The judgment made it clear, however, that the focus was on medical issues surrounding vaccination, rather than any wider concerns in relation to the child’s welfare.
Vaccination law in the future
In future, it was decided that “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.”
The above applies even if there is an interim care order in place rather than a full care order.
It was made clear by the Court that despite this judgement, it shouldn’t be assumed that local authorities have blanket permission to exercise their consent in this way – each case must be dealt with on its own merits, and detailed analysis will need to be undertaken. The Court also said that while the views and wishes of the child’s parents should naturally be taken into account, their opinion is not determinative unless it can be shown that their views genuinely impact on the child’s welfare.
Subject to any major changes to accepted medical opinion, or peer-reviewed research that indicates the opposite, the judgement indicates that the future approach to be taken by a local authority or court is that the benefits of vaccinating a child (in accordance with the relevant Public Health England guidance) should outweigh any potential side effects, and that as far as ‘routine’ cases are concerned, medical evidence is not needed.
For a full transcript, see: Re H (A Child)(Parental Responsibility: Vaccination)