The High Court considered this recently in the case of Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) This was a case about a 13 year old child (C) was in the care of the local authority. He wanted to be vaccinated with the Covid-19 and winter flu vaccines. He was supported in this by the local authority in whose care he is and by his Children’s Guardian who agreed it would be in his best interests. His father also agreed, but his mother was strongly opposed to C being vaccinated. There were no medical issues specific to C which raised concerns about the administration of the Covid-19 vaccine.

S33(3) and 33(4) of the Children Act 1989 provide that where a care order has been made the local authority have parental responsibility (PR) for that child and have the power to determine the extent to which the parents (or anyone else with PR) may meet their parental responsibility for the child. This is only to be used in so far as it is necessary to do so to safeguard or promote the child’s welfare. It is accepted that a Local Authority should not use this power to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child.

There is already case law that sets out that 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 even if their parents disagree. Most recently Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 addressed this in relation to the standard NHS vaccination programme for children. However, this had not been specifically considered before in relation to the Covid-19 or winter flu vaccinations.

A decision to offer vaccination for Covid-19 to all 12-15 year old children was announced by the government on 12 September 2021. The provision of the winter flu vaccine for children in school years 7 to 11 was added to the flu vaccine programme on 13 October 2021.

The Judge in this case, Mr Justice Poole, found that the same principals applied to the winter flu and Covid-19 vaccinations as apply to other vaccines forming part of the national vaccination programme. There was no need for the Court to consider expert evidence or explore the relative merits of vaccination. The Judge set out that in cases that concern vaccines that are part of national programmes, the question of whether expert evidence is necessary will only arise if there is an identifiable, well-evidenced, concern about whether, due to their individual circumstances, a vaccine is contraindicated for a particular child. Or if there is, as MacDonald J put it in M v H, “new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety” of one or more of the vaccines that is the subject of the application…”. Even in such a case he was doubtful as to whether the Family Court should enter into an exercise that went behind an established and continuing national vaccination programme.

A local authority, with parental reposinsibility may consent to the vaccinations despite objections from the parents when:

  1. such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency,
  2. the child is either not Gillick competent or is Gillick competent and consents, and
  3. the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare.

Mr Justice Poole confirmed that in such cases, there is no requirement for any application to be made for the court to authorise such a decision before it is acted upon.

There may be cases which cannot be approved by the LA relying on their powers under s33 of the Children Act, namely where there are specific concerns regarding the individual child which would make the decision “grave”, or if the child does not consent and is “Gillick competent”. It is yet to be seen what decision would be made if a child is Gillick competent and refuses. At present it seems unlikely that a local authority would seek to override their wishes but the court does have the power to do so in certain circumstances.

Claire Longland is an Associate solicitor in the Family department at TV Edwards. She has broad professional experience in relation to both private and public children law matters. Contact Claire on claire.longland@tvedwards.com or 020 3440 8034 for advice on a related query.

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