Gemma Bowes, Barrister
T (A child) EWHC 220 (Fam)
In the coming weeks and months, we are likely to be hearing more and more about a vaccine against coronavirus, and possible pressure and expectations to relax the regulations and timescales around trialling it. Parents are likely to be asked to consider and consent to a vaccine that they may have reservations about. Of course, we currently live in a country where recommended vaccinations are not mandatory, but require parents’ consent. It is not inconceivable that England & Wales will move to effectively requiring mandatory vaccination in order to access other services such as schools and nurseries. Pause for a minute and think of the implications for local authorities and foster placements.
T (A Child)  EWHC 220 (Fam) (heard on 5 February) diverges from the stream of previous cases by indicating that where a local authority holds parental responsibility, its ‘consent’ is sufficient (i.e. to act under s.33(3) CA in light of the duties in s.22 CA), and it need not apply under the inherent jurisdiction for a declaration when a parent has not provided consent. Instead, it appears to suggest that the local authority should indicate its intention to proceed with a vaccination programme and it is for a parent to apply under the inherent jurisdiction if they wish for a declaration that to proceed is unlawful.
For reference, s.22 provides:
(3) It shall be the duty of a local authority looking after any child –
(a) to safeguard and promote his welfare; and
(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. […]
(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of –
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but has parental responsibility for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided.
(5) In making any such decision a local authority shall give due consideration –
(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c) to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6) If it appears to a local authority that it is necessary, for the purposes of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7) If the Secretary of State considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, the Secretary of state may give such directions to the authority.
(8) Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
- Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force. […]
(3) While a care order is in force with respect to a child, the local authority designated by the order shall:
(a) have parental responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which
(i) a parent, guardian or special guardian of the child; or (ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for him.
(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare. […]
The most recent go-to case had been Re SL (Permission to vaccinate)  EWHC 125. In that case (regarding the Hib and PCV vaccines, which are on the NHS schedule to be given in the first 13 months of a baby’s life), MacDonald J stated at para.32:
“In this case the court is concerned with the issue of vaccinations in the context of children who are the subject of care orders and thus the dispute between the local authority sharing parental responsibility for the child and the parents with parental responsibility. In the circumstances where SL is in the care of the local authority, by virtue of s.9(1) of the Children Act 1989 the local authority cannot apply for a specific issue order with respect to the issue of vaccination. Further, given the gravity of the issue in dispute, it is not appropriate for the local authority simply to give its consent to immunisation, pursuant to the provisions of s.33(3) of the Children Act 1989 on the basis of its shared parental responsibility for SL under the interim care order.”
However, in T (A Child) (regarding the NHS schedule of vaccines for a 10 month old baby) Hayden J contradicts this at para.14:
“I do not in any way intend to diminish the inevitable stress and anxiety that such vaccination will always carry for loving and responsible parents. But neither do I regard them as a ‘grave issue’ outside the scope of s.33(3)CA.”
And at para 16:
“I have no doubt at all that if the Local Authority had signalled its intention to have T vaccinated under the authority of s.33(3)CA, this would have led to an immediate application on behalf of the parents to invoke the inherent jurisdiction. Nonetheless, I, for my part, can see no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination.”
That is a welcome change in respect of established vaccinations. However, there are going to be thorny questions to grapple with in respect of a new vaccine against coronavirus. For example:
- If a vaccine for coronavirus becomes available, at what stage could it be considered to fall within the bracket of “ultimately routine vaccinations”? When the government first recommends all children are vaccinated? Or perhaps when school and nursery providers are allowed to refuse services to children who have not been vaccinated?
- Will local authorities be criticised for placing an unvaccinated child in a placement with other young children?
- Will foster carers be willing to take an unvaccinated child or be willing to reduce the number of children they have in placement to accommodate one unvaccinated child? On a similar theme, if we get to a model previously adopted in some European countries, how many foster carers would be able and willing to take children who are not permitted to attend schools/nurseries?
- If there is controversy over a vaccine that is authorised and recommended in England and Wales for use, to what extent could s.22(6) come in to play? Or could we see s.22(7) used (or new explicit powers in that vein) so that all children in care must be vaccinated in order to protect members of the public from serious injury?
- Will there emerge a double standard of looked-after children being vaccinated, and the parents of children with whom a local authority does not share PR not consenting to and not getting their children vaccinated?
- If the regulatory framework is relaxed in order to speed up the rolling out of a vaccine, is it fair that looked after children may effectively end up being at the forefront of providing a ‘herd immunity’ which will benefit the children whose parents do not consent to the vaccine?
The extent of spread of 5G conspiracy theories is an indication of how problematic gaining universal public support for a vaccination programme may be. For parents already disenfranchised in ways perhaps other sections of society had overlooked – from the normality of vaccination in advance of overseas travel, from access to IT facilities which would enable effective participation in remote proceedings, or from any immediate benefit in a neoliberal economy ‘getting back to normal’, it could understandably be all the more worrying. Even if T (A Child) looked like calling a halt on time consuming local authority applications under the inherent jurisdiction, be braced.