Re H (A Child)(Parental Responsibility: Vaccination)


Local Authorities can vaccinate children in care without parental consent – UK Court of Appeal

An appeal court judgment handed down on 22nd May 2020 is going to raise a lot of concern and social media attention among parents concerned with having their parental rights eroded. However, as Consent lays out below, very little has changed in practice.

The judgment primarily affects children in care, that is children subject to a care order or interim care order.

When a care order is made, the Local Authority (LA) obtains parental rights. Parents do not lose theirs but the LA’s has priority. So in this respect the LA already had powers to decide on medical treatment for children. However, the law was (maybe still is) unclear on what limits there are to this. Previous judgments set conflicting precedence as to whether a vaccination is a grave matter requiring a court decision if parents oppose or whether vaccinations should be considered a medical treatment at all. The Court of Appeal has now attempted to clarify this.

In the view of the court, LAs do not need a court decision even if parents are opposed. The judges considered vaccinations not grave enough a matter and the related cases an unnecessary burden on the courts system. They point out that they are not aware of any public or private law case in which vaccinations were ever not found in the child’s best interest; and there have been many. This is why we say not much has changed in practice. A lengthy and expensive court process has ever only delayed matters.

However, parents do still have the option to take out an injunction to stop the LA from going ahead while they, the parents, challenge the LA’s planned vaccinations in the High Court. While unlikely to succeed, it is not ruled out that in some very limited circumstances the court will agree with the parents. But the onus is on the parents to challenge, not on the LA to seek court approval before acting.

The Appeal Court made clear that this is not about private law cases: normally disputes between estranged parents. These are a different matter and although here too the situation may change as court cases appear ever more predictable, as of yet both parents need to agree or else one has to apply for a specific issues order.

Parents may be encouraged that the judgment re-emphasised that non-vaccination alone is unlikely to justify state intervention (meaning here a care order or interim care order) and could only do so as part of a wider case of neglect.

When a child is in care, a court has already decided that it suffered or was likely to suffer significant harm due to the standard of care received at home. It is in this context that LAs may decide on vaccinations.

Finally, this case may be of interest to those parents who subscribe to the belief that by not registering the birth of a child that child somehow does not come under the jurisdiction of the UK courts. The parents in this case fall into this category and, needless to say, it didn’t help them.