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Corporate parent v birth parent, who makes the final decision?

Can a chlid who is looked after, receive the Covid vaccination without parental consent?

An important question that was considered in the case of C(Looked After Child) (Covide-19 Vaccination) [2021] EWHC 2993 (Fam)

Summary of the case:

The case relates to a child known as C, who is 13 years old and is subject to a care order. C wanted to receive the Covid 19 and the winter flu vaccines. C was in a placement with a disabled child, and C was concerned about the possibility of infecting him. C did not have any known health conditions.

The local authority and the Guardian supported C’s decision and considered it in C’s best interests to be vaccinated. The father supported C’s decision. However, the mother strongly opposed believing it to be unsafe.

The local authority took the view that even if the mother objected, it had the right under s.33 of the Children Act 1989 to exercise parental responsibility as the corporate parent by arranging and consenting to the two vaccinations for C.

The local authority then made an application to the High Court for an order permitting authorisation for the vaccinations.

Background

In September 2021, NHS announced a decision to offer vaccination for Covid-19 to all 12-15-year-old children, and in October 2021, the winter flu vaccine for children in school years 7 to 11 was added to the programme.

Public Health England’s guidance is that although vaccinations are not compulsory, the scientific evidence establishes that it is in the best medical interests of children unless there is a specific contra-indication in an individual case.

The court’s decision:

The court in C’s case, considered and applied the former case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664

In Re H, the Court of Appeal held that even where parents are objecting, 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. However, this case did not specifically deal with the issue of the Covid- 19 or winter flu vaccines.

Following consideration of the Re H case, the High Court stated that the required vaccinations in C’s case are similar to a normal childhood vaccination which the local authority is able to authorise as part of the exercise of parental responsibility as set out in s33 (3)(b) of the Children Act 1989.

The vaccination was not an extraordinary medical treatment, and it was, therefore, not necessary to go to Court for authorisation. should parents disagree, they can make an application to the High Court and, if necessary, apply for an injunction to prevent vaccinations before the court makes a final determination.

Points to note from C’s case:  

  • Under s.33(3)(b) CA 1989, a local authority with a care order can arrange and consent to a child in its care to be vaccinated, where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. [Re H, para 104]
  • A local authority is not required to make applications to court for standard or routine vaccinations. However, S.33(3) does not give a local authority complete authority to proceed to arrange and consent to vaccinations for every child. The local authority should not rely on it in relation to a serious or “grave decision with enduring or profound consequences for the child.” [re C para 25]
  • S.33(4) a local authority must make an “individualised” welfare decision in relation to the child in question before arranging the vaccination [Re H para 33 & 99]
  • Parental views regarding immunisation must always be taken into account. 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.

The child’s voice:

The child’s ability to make decisions has been firmly set out in the case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112

“The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. … “ [para

Questions to be considered when considering a child’s competency:

  1. Does the child have sufficient understanding of what is involved or the advice that is given and
  2. Does the child have sufficient maturity to understand what is involved and or the consequences of his/her decision.

A point that was made very clearly in the case of S (A Child) (Child Parent: Adoption Consent) [2017] EWHC 2729, is that any professional assessment of whether a child is competent or not will be child-specific and decision specific [para 17]

In C’s case, there was no conflict between C and the Local Authority on the issue of C receiving the vaccinations. Therefore, whether C, 12 years old, was a competent child capable of making the decision to be vaccinated was not considered by the court. However, the High Court clarified in re C that the court can override a competent child’s decision where necessary.

In summary

In answer to where there is conflict on whether a child who is looked after can be vaccinated, who makes the final decision.  The case law has established that s.33(3)(b) CA 1989 entitles a local authority with a care order to arrange and consent to a child in its care receiving routine vaccinations where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.

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Disclaimer: The contents of this guide are for information and are not intended to be relied upon as legal advice

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