HM Insights

First child vaccination case of its kind presented in English court

You may have seen a recent article featuring on our website by our Family Law Partner, Amanda Masson, “Can I be forced to vaccinate my child?”. If you haven’t yet had a chance to read it, you can find it here.

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Shortly after this article was written, on 12 September 2021, the Covid-19 vaccination programme was extended to enable children aged between 12 and 15 to receive the Covid-19 vaccination.

As anticipated, it wasn’t long before the issue of vaccinating a child against Covid-19 was brought before the Courts. We have now seen what is said to have been the first case of its kind presented in England, before the High Court of Justice Family Division at Grimsby in Re: C (Looked After Child) (Covid-19 Vaccination).

The Facts

This case concerned a 12 year old boy who was the subject of a Local Authority care order. He was living in a Local Authority placement and had been since December 2015. The child’s mother and father retained their parental rights and responsibilities in relation to the child. Due to the care order in place, the Local Authority also held parental rights and responsibilities in relation to the child.

The child’s views were that he wished to have the Covid-19 and also the winter flu vaccinations. The Local Authority were supportive of this, as was the child’s father. The child’s mother however was opposed to the child receiving both the Covid-19 vaccination and the winter flu vaccination.

The Local Authority made an application to the High Court for a declaration that it could override the wishes of the child’s mother in the circumstances, to enable the child to receive the vaccinations.

The Opposition

The child’s mother’s position was a strong but generalised concern about the vaccines. She did not consider the Covid-19 vaccination to be tried and tested. She considered the winter flu vaccination to be unsafe. She did not wish her child to receive either vaccine. There were no medical issues specific to the child that raised concerns about the vaccines and the child’s mother accepted this, though she said the child may have had an unknown condition that would put him at risk. She sought more time to look into the safety and efficacy of the winter flu vaccine, and she did not wish her child to receive the Covid-19 vaccination a until such time as there was what she would regard as ‘compelling evidence that it is safe and effective’. She did not accept that the decisions made about the National vaccination programmes were based on sound evidence.

In addition, the child’s mother sought clarification as to who would be responsible for any adverse reaction that may be suffered by her child if he were to be vaccinated, stating that she would hold the Court so responsible.

The child’s mother produced items to the Court, which the Court described as ‘anti Covid-19 vaccination propaganda’. The Court found the material to be devoid of evidence and rational argument, failing to point to any peer reviewed research that would raise any significant concern about the safety and efficacy of either the Covid-19 or the winter flu vaccine.

National Guidance

Reference was made to the publication of advice given by the UK Health Security Agency:

UK Health Security Agency, Guidance, COVID-19 vaccination programme for young people: guidance for parents. Updated 19 October 2021:

The UK's Chief Medical Officers (CMOs) all agree that while COVID-19 is typically mild or asymptomatic in most young people, it can be very unpleasant for some and 1 dose of the vaccine will provide good protection against severe illness and hospitalisation. Vaccinating 12 to 15 year olds should also help to reduce the need for young people to have time-off school and reduce the risk of spread of COVID-19 within schools. The COVID-19 secondary schools vaccine programme should therefore provide protection to young people and reduce the disruption to face to face education. This will help to keep young people emotionally well and happier and this was an important consideration for the CMOs.

Similar guidance was referred to in respect of the winter flu vaccination:

UK Health Security Agency, Guidance, Flu vaccination programme 2021 to 2022: briefing for schools - October 2021 update, updated 13 October 2021:

Why is flu vaccination important for children?

Flu is unpredictable and the levels of flu activity vary each year. Some years are much worse than others. For instance, in 2014 to 2015, a bad flu year, there were 28,000 deaths. There are several strains of the flu virus that cause flu and virus mutations also occur. Flu can be a serious illness that leads to complications like bronchitis and pneumonia, and painful ear infections in children. Children under the age of 5 years old have the highest rate of hospital admission of any age group. The main purpose of the programme is to help protect children themselves and to stop them spreading flu to their families and the wider community, given the role that children have in transmission of the flu virus. Those most at risk from the complications of flu (such as pregnant women, older people, and those with underlying health conditions) are also offered flu vaccination, and it is also free for anyone aged 50 years old and over this year.

The Child’s Views

The child’s views were taken by a Guardian who was appointed to him. The child expressed that he was frustrated by his mother’s position. He had weighed up the evidence about the vaccines and reflected upon his own circumstances. In particular, the child had concerns about the risk of infection of a disabled child who he lived with in his current placement. The child stated that he did not consider his mother’s views to be ‘smart’. He was clear that he wished to receive both vaccinations.

Decision

In the absence of any specific evidenced based concerns about this particular child receiving these vaccinations, or otherwise any new peer-reviewed research calling into question the efficacy and/or safety of the vaccines, the Court did not consider it necessary or appropriate delve into an assessment of the vaccines themselves nor seek expert evidence about the vaccines. The Court was satisfied that the National vaccination programmes are based on a wealth of scrutinised evidence and, as the vaccinations have been approved and recommended by the UK Health Security Agency, the Court was satisfied that these vaccinations are in the best interests of the children at the specified age.

The Court acknowledged that vaccines are not free from a risk of harm to a child. It also acknowledged that not giving a vaccine also gives rise to a risk of harm to a child. However, before a National programme of vaccination is rolled out, such risks require to be carefully considered and balanced against the benefits brought about by the vaccination.

The Court highlighted that this case was simplified to some extent as the child himself wished to have the vaccines. The Court was satisfied in the circumstances that the Local Authority, with a care order in place, could override the mother’s wishes in this case and thus proceed with authorising the vaccination.

Conclusion

Whilst this is the first case relating to the administering of a Covid-19 vaccination, there have previously been a number of cases presented before the English Courts with similar disputes surrounding the administration of a vaccine to a child in the face of opposition.

In 2013, the case of F v F saw the High Court order that two children, aged 11 and 15, be administered the MMR vaccination, despite their mother’s and their own opposition. The children’s father was in favour of the children receiving the vaccinations. Whilst the Court was bound to take the children’s views into account, the Court found their views lacked a mature and appropriate understanding of the issues surrounding the vaccination. The Court acknowledged their statutory duty to treat the child’s welfare as its paramount consideration and in the circumstances the children’s views could not override that duty. The children were therefore ordered to receive the vaccination.

We are yet to see a case come before a Scottish Court regarding the Covid-19 vaccination. However, this English case law reinforces our earlier thoughts in terms of the approach we would expect a Scottish Court to take in a situation such as this; to follow the National Government guidance in favour of vaccination in the absence of any specific contraindication relating to the individual subject child.