Lady Justice King, with whom Lord Justice McCombe and Lord Justice Peter Jackson agree:
Introduction
- On 23 January 2020,
Hayden
J made care and placement orders in respect of a baby, T, who was then aged 9 months. The events which
had
led up to the instigation of the care proceedings, the basis upon which the threshold findings were made, and the welfare reasons which ultimately led to the making of the orders can be found in London Borough of Tower
Hamlets
v M, F and T [2020] EWFC 4, one of three judgments given by the judge in respect of T.
- The parents also objected to T receiving the various
vaccinations
which are routinely administered to babies in this country in accordance with Public
Health
England's guidance found in "The Green Book: Information for public
health
professionals on immunisations". This refusal
has
led to a significant delay and
has
necessitated the local authority seeking orders from the court that T be
vaccinated.
Vaccination
is the administration of a
vaccine
to
help
the immune system develop protection from a disease. Immunisation is the process of becoming immune to the disease following
vaccination.
I shall refer to the two concepts interchangeably.
- In the judgment with which this court is concerned, dated 7 February 2020 and found at [2020] EWHC 220 (Fam),
Hayden
J said that the parents, but more particularly the father, are "driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority
has
any jurisdiction to take decisions in relation to
his
children". To this end they
had
also declined to register T's birth, leading the local authority to bring this issue before the court (see [2019] EWHC 1572 (Fam)) and to
Hayden
J approving the local authority's plan to act as a qualified informant under the Births and Deaths Registration Act 1953 to ensure compliance with this mandatory step in a baby's life.
- The judge
held
a discrete
hearing
at which to determine the
vaccination
issue.
Having
had
the benefit of extensive evidence from Dr Neil Douglas, Speciality Doctor in Community Paediatrics and Named Doctor for Looked After Children, as to the benefits of immunisation in general and in relation to T in particular, the judge
held:
"20….It is, to my mind, self-evident that for T, as a
healthy,
young infant, the risks contingent upon not
vaccinating
him
significantly outweigh the benefits. The conditions identified include potential for catastrophic consequences which, as illustrated, involve paralysis, seizure, learning disabilities, visual loss and cancer. T's Guardian comes to the clear conclusion that, "as a
healthy,
well-grown baby" there are "no contra-indications for T from the
vaccines
proposed."
- The judge accordingly made the following orders, now the subject of this appeal:
i)
He
declared that the local authority
had
lawful authority pursuant to s.33(3) Children Act 1989 to consent to and make arrangements for the
vaccination
of T notwithstanding the objections of
his
parents; and
ii) "Further, for the avoidance of doubt"
he
declared that it was lawful and in the best interests of T to be
vaccinated
as recommended by Dr Douglas in accordance with the revised scheme found within the guidance for babies of T's age where they
have
not been given their
vaccinations
at the optimum age of under 6 months.
- The judge, it can therefore be seen, made the order for the
vaccination
of T under two possible jurisdictional routes, either:
i) s.33(3) Children Act 1989 (CA 1989); or
ii) By way of declaration under the inherent jurisdiction of the court, with permission granted under s.100 CA 1989.
- The judge
had
been specifically requested by Mr Barnes on behalf of the local authority to consider whether the local authority could authorise the
vaccination
of T under s.33(3). The judge
held
that they could.
- The judge
held
at paragraph [12] that
vaccinations
should not be characterised as "medical treatment" but as "a facet of public preventative
healthcare
intending to protect both individual children and society more generally".
He
recognised that
had
the local authority signalled its intention to
have
T
vaccinated
under the authority of s.33(3) CA 1989, this would
have
led to an immediate application on behalf of the parents to invoke the inherent jurisdiction, but said:
"16……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 s33(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 case to authorise
vaccination."
- Notwithstanding
his
clear and unequivocal view, the judge "for the avoidance of doubt" made declarations under the inherent jurisdiction of the court.
His
reasoning is contrary to that expressed in Re SL (Permission to
Vaccinate)
[2017] EWHC 125 (Re SL). In that case, MacDonald J
had
characterised the issue of
vaccinations
as being one of "gravity" and
he
was therefore of the view that the immunisation of a child is a matter in relation to which it is inappropriate for a local authority to give its consent under s.33(3) CA 1989, and that the proper course is for a local authority to apply to the court for leave to invoke the court's inherent jurisdiction under s.100 CA 1989.
- Because of this conflict of authority at
High
Court level,
Hayden
J gave permission to appeal
his
decision pursuant to the Family Procedure Rules (rule 30.3(7)(a)-(b)) on the basis of "contradictory decisions on the substantive issue".
- There are two grounds of appeal. Ground 1 is that the judge was wrong to declare that the local authority
had
power under s.33(3)(b) to consent to the
vaccinations
notwithstanding the parent's objections; Ground 2 is that the judge was, in any event, wrong to give the local authority permission to arrange for T to be
vaccinated.
- It became apparent during the course of the
hearing
of this appeal, that Ground 2
had
fallen away. Mr Bailey, on behalf of the parents, no longer asked the court to consider the merits of the order made by
Hayden
J permitting the local authority to arrange T's
vaccination.
The
vaccinations
will now take place.
- The issue before this court, therefore, relates solely to the identification of the proper procedural route to be adopted by a local authority where a dispute in relation to
vaccination
arises with parents in relation to a child in their care.
- In order to determine that issue, it is necessary to unravel certain elements which, over the years,
have
become somewhat entwined. In particular, I will consider the key question of whether
vaccination
is to be considered a serious or grave matter and also make some reference to whether it is to be regarded as medical treatment. Further, consideration needs to be given to whether there is a difference in parental
responsibility
as it arises in public law proceedings as opposed to in private law proceedings.
Parental
Responsibility:
Parents and Local Authorities
- During
his
or
her
childhood every child
has
to be fed, clothed, accommodated, educated and nurtured. This requires innumerable, often mundane, decisions to be made on behalf of that child on a daily, if not
hourly,
basis. The nature and type of those decisions will vary and alter with maturity. Whilst many decisions are prosaic – "it's bedtime now" – there are also decisions to be made which are of the utmost importance and may
have
a significant effect on a child's future
health
and/or welfare.
- It is both right, and unsurprising, that parents place a
high
value on their rights and duties in respect of their children. Provided that the child
has
not come to, and is not likely to come to, significant
harm,
the law respects the right of the parents to bring up their child as they think best, and the State, in the form of local authorities and courts, should be, and is, slow to interfere with their exercise of parental
responsibility.
- Parental
responsibility
is defined at s.3 CA 1989 as:
"3 Meaning of "parental
responsibility"
(1) In this Act "parental
responsibility"
means all the rights, duties, powers,
responsibilities
and authority which by law a parent of a child
has
in relation to the child and
his
property."
- By s.2 CA 1989, a mother
has
parental
responsibility
for
her
child from the time of giving birth. Sections 2 and 4 go on to set out the circumstances in which a father
has
parental
responsibility,
either from birth or by its subsequent acquisition. For the purposes of this judgment it is not necessary to further analyse those sections as it is common ground that this father
has
parental
responsibility.
- Section 2 sets out the parameters of parental
responsibility.
By s.2(6), a person does not cease to
have
parental
responsibility
solely because some other person subsequently acquires parental
responsibility.
Significantly, in respect of the issues in this case, by s.2(7), where more than one person
has
parental
responsibility,
each may act alone in meeting that
responsibility
(unless the consent of more than one person is required). Further, by s.2(8), the fact that a person
has
parental
responsibility
does not entitle
him
or
her
to act in a way which is incompatible with any order made under the Act
- It goes without saying that the giving of consent to
having
one's child
vaccinated
is an exercise of parental
responsibility.
Whilst, for the reasons rehearsed in the report of Dr Douglas and referred to below, it cannot be doubted that it is both reasonable and
responsible
parental behaviour to arrange for one's child to be
vaccinated
in accordance with the Public
Health
England guidelines, there is at present no legal requirement in this country for a child to be
vaccinated.
It follows that, taken in isolation, a failure to arrange for an otherwise
healthy
child to be
vaccinated
would be unlikely to amount to 'significant
harm
or the likelihood of significant
harm'
such as to satisfy the threshold criteria necessary in order for a care order to be made pursuant to s.31 CA 1989. By contrast, a failure by parents to obtain
vaccinations
for their children may feature as one of a series of wider threshold allegations in support of a more generalised case of neglect.
- Issues concerning the
vaccination
of a child may arise in two circumstances: where there is disagreement between the child's parents, or where, as in this case, a child is in care and there is disagreement between the child's parents and the local authority. The question that arises
here
is whether the local authority
has
the power to consent to
vaccination
in the best interests of the child, and thereby to provide lawful authority for something that is not compulsory.
- What, then, is the position of a child who
has
been placed in the care of a local authority? The starting point is s.33 CA 1989.
33 Effect of care order.
(1) 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.
(2) …
(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.
(5) Nothing in subsection (3)(b) shall prevent a person mentioned in that provision who
has
care of the child from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting
his
welfare.
(6) While a care order is in force with respect to a child, the local authority designated by the order shall not—
(a) cause the child to be brought up in any religious persuasion other than that in which
he
would
have
been brought up if the order
had
not been made; or
(b)
have
the right—
(i) …
(ii) to agree or refuse to agree to the making of an adoption order, or an order under section 84 of the Adoption and Children Act 2002, with respect to the child; or
(iii) to appoint a guardian for the child.
(7) While a care order is in force with respect to a child, no person may—
(a) cause the child to be known by a new surname; or
(b) remove
him
from the United Kingdom,
without either the written consent of every person who
has
parental
responsibility
for the child or the leave of the court.
(8) Subsection (7)(b) does not—
(a) prevent the removal of such a child, for a period of less than one month, by the authority in whose care
he
is; or
(b) apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2 in England, and section 124 of the Social Services and Well-being (Wales) Act 2014 in Wales).
(9) The power in subsection (3)(b) is subject (in addition to being subject to the provisions of this section) to any right, duty, power,
responsibility
or authority which a person mentioned in that provision
has
in relation to the child and
his
property by virtue of any other enactment."
- T is in the care of the local authority. The local authority
has
parental
responsibility
for
him
by virtue of s.33(3)(a) and accordingly the power under ss.(3)(b) to "determine the extent to which the parent may meet
his
parental
responsibility".
Whilst the local authority can 'overrule' a parent's view in relation to decisions in respect of the child, there are a number of safeguards are in place, namely:
i) By s.22(3)(a), the exercise by the local authority of its parental
responsibility
under s.33 is subject to its general duty in relation to a child who it is looking after, namely to "safeguard and promote
his
welfare".
ii) By s.22(4), before making any decision with respect to a looked-after child, the local authority must, so far as is reasonably practicable, ascertain the wishes and feelings of the child and
his
parents regarding the matter to be decided.
iii) By s.33(4), the local authority may not exercise its overriding parental
responsibility
unless it is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.
iv) By s.33(6)-(8), the local authority may not change a child's religion, agree to
his
adoption, appoint a guardian for
him,
change
his
surname without written agreement or (without going through prescribed procedures) remove
him
from the United Kingdom for more than a month without written agreement.
- It should be noted that s.33 applies equally to interim care orders as it does to final care orders: s.31(11). The approach to
vaccination
does not depend upon whether a child is subject to an interim care order or a final care order. Many children who are subject to interim care orders are of an age where they would be expected to be
vaccinated.
- On a strict reading of s.33(3)(b), and subject only to the exceptions already
highlighted,
the extent to which a local authority may exercise its parental
responsibility
is unlimited, provided that it is acting in order to safeguard or promote the welfare of the child in its care.
However,
whilst that may be the case when considering the section in isolation, local authorities and the courts
have
for many years been acutely aware that some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) to override the wishes or views of a parent. Such decisions
have
chiefly related to serious medical treatment, although in Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 (Re C), the issue related to a local authority's desire to override a mother's choice of forename for
her
children. The category of such cases is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child.
- At first blush, the rather difficult terms of s.100 CA 1989, would seem to preclude a local authority from using the inherent jurisdiction of the
High
Court as an alternative route to its powers under s.33(3)(b) CA. Section 100 provides:
"(2) No court shall exercise the
High
Court's inherent jurisdiction with respect to children—
(a) …
(b) …
(c) …
(d) for the purpose of conferring on any local authority power to determine any question which
has
arisen, or which may arise, in connection with any aspect of parental
responsibility
for a child.
(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority
have
obtained the leave of the court.
(4) The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child
he
is likely to suffer significant
harm.
(5) This subsection applies to any order—
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave), that leave is granted."
- The use of the inherent jurisdiction by a local authority, with permission granted under s.100, is nevertheless the route which is now approved and adopted in certain difficult cases, although in most serious medical treatment cases the local authority with care of a child will encourage/request the relevant NHS Trust to initiate proceedings. In Re C, when approving the use of the inherent jurisdiction by a local authority as opposed to its powers under s.33(3) CA 1989, I said:
"90. Whilst I may not necessarily agree with the precise way that jurisdictional issues
have
been approached or expressed in these very difficult cases, what is clear is that there is a cohort of cases where the common theme is that a party (whether it be a local authority or, often, an NHS Trust)
has
sought to bring an issue before the court, believing it to be of too great a magnitude to be determined without the guidance of the court, and without all those with parental
responsibility
having
an opportunity to express their view as a part of the decision making process.
91. Most commonly, examples are found in the so called 'medical treatment' cases where, either an NHS Trust seeks a declaration from the court that they would not be acting unlawfully in pursuing or desisting from a form of treatment notwithstanding the parent's refusal to consent, or alternatively, a local authority seeks to invoke the inherent jurisdiction of the court and thereby to submit to the court's jurisdiction notwithstanding that care proceedings may
have
been open to them.
92- 95 …
96. … the court did not specifically consider the restriction found in section 100 CA 1989, which prevents the
High
Court from exercising its inherent jurisdiction:
"…for the purpose of conferring on any local authority power to determine any question which
has
arisen, or which may arise, in connection with any aspect of parental
responsibility
for a child."
97. In my view it was not necessary to do so. In the medical treatment cases, where a local authority either itself applies to invoke the jurisdiction of the court in relation to a serious medical issue or, as in Re T, declines to consent to medical treatment and asks the NHS Trust to seek a declaration of the court, the court is not being asked to confer a power upon the local authority in respect of an aspect of parental
responsibility.
On the contrary, the local authority already
has
the power to consent to medical treatment under section 33(3)(b) CA 1989. Far from being asked to confer a power on themselves, the
High
Court was being asked to use its inherent jurisdiction to limit, circumscribe or sanction the use of power which the local authority already
has
by virtue of section 33(3)(b) CA 1989 .
98. In the medical treatment cases the decisions to be made may well be a matter of life and death. In the present case, the limitation on the exercise of parental
responsibility
proposed by the local authority, whilst not life threatening, is life affecting. Further such a decision potentially involves such a serious invasion of the Article 8 rights of the mother that I am satisfied that the court should invoke its inherent jurisdiction in order that it may either sanction the local authority's proposed course of action as in the interests of the children or, alternatively, to refuse to sanction it as for example being in breach of Article 8.
99. In reaching that conclusion I
have
not overlooked section 100(4) & (5) CA 1989:
"(4) The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child
he
is likely to suffer significant
harm.
5) This subsection applies to any order—
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."
100. I am satisfied that the result which the local authority wish to achieve cannot be achieved either:
i) through the making of an order to which section 100(5) CA 1989 applies in the absence of a provision (or requirement) in section 33 CA 1989 for the local authority to make an application in relation to the giving or changing of a forename of a child or
ii) by way of a prohibited steps order or a specific issue order.
101. That leaves the question of "whether there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child
he
is likely to suffer significant
harm"?
102. The judge reached the conclusion that section 100(4)(b) CA 1989 was not satisfied; in
his
judgment, the giving to the babies of the names contemplated by the mother did not give the court "reasonable cause to believe that if the court's inherent jurisdiction is not exercised" they would suffer significant
harm.
Further, the judge appeared to be of the view that a single issue relating to the naming of a child, is not, without more, capable of satisfying the section 31 CA 1989 threshold criteria. With respect I disagree; in my judgment, although it will only rarely be the case, the giving of a particular name to a child can give a court reasonable cause to believe that, absent its intervention, the child in question is likely to suffer significant emotional
harm.
In my judgment this is one such case and there is every reason to believe that if the court's inherent jurisdiction is not invoked in order to prevent the girl child from being named "Cyanide", she is likely to suffer significant
harm.
103. In my judgment, the local authority took the correct procedural route when they made an application under section 100 CA 1989 seeking "the intervention of the
High
Court in order to exercise its powers pursuant to section 100 Children Act (CA) 1989 and/or its Inherent Jurisdiction" (sic)."
- In Re C therefore it was
held
that:
i) Certain decisions are of such magnitude that they should not be determined by a local authority without all those with parental
responsibility
having
an opportunity to express their view to a court as part of the decision-making process;
ii) Section 100 CA 1989 is available to a local authority in serious medical treatment cases because it is not seeking to confer a power on itself; the
High
Court is instead being asked to use its inherent jurisdiction to limit, circumscribe or sanction the use of power which the local authority already
has
by virtue of section 33(3)(b);
iii) As the section provides, leave to apply can only be granted where the court
has
reasonable cause to believe that, if the inherent jurisdiction was not exercised with respect to the children, they would be likely to suffer significant
harm.
The issue in this case
- This court is now faced with determining whether the routine
vaccination
of
healthy
children in care is a matter which a local authority can properly consent to and arrange pursuant to its powers under s.33 CA 1989 or whether, where a parent opposes it, the issue is of such magnitude, seriousness or gravity that it necessitates an application to the
High
Court for leave to invoke its inherent jurisdiction.
- It seems to me that the issue
has
to be determined against the backdrop of two matters:
i) Current scientific and medical thinking in relation to
vaccination;
ii) The current state of the law in relation to the court's approach to cases involving serious medical treatment generally and specifically to the giving of consent for
vaccination.
- If consenting to
vaccination
properly falls within the scope of a local authority's exercise of parental
responsibility
under s.33(3), that is not altogether the end of the matter. It is important to note that in each case, the local authority must make what
has
been termed an 'individualised' welfare decision in relation to the child in question prior to arranging
his
or
her
vaccination.
Vaccinations
- The current established medical view is that the routine
vaccination
of infants is in the best interests of those children and for the public good. The specific immunisations which are recommended for children in this country are set out in The routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.
- Dr Douglas, in a report commissioned in these proceedings, set out a proposed programme of immunisation for T which is in compliance with that recommended in the guidance in relation to "Children from first up to second birthday". T, who
has
no contra-indications, will now be
vaccinated
in accordance with this programme
- Dr Douglas summarised the consequences of failing to
vaccinate
a child by reference to a detailed consideration of the main characteristics of the diseases against which children in the UK are
vaccinated
and set that against an analysis of the potential side-effects in each case. I summarise Dr Douglas' analysis below, not in order to determine whether it is in the best interests of T to be
vaccinated
– that
has
been conceded and is obviously the case – but as context against which to consider whether the giving of
vaccinations
can be properly classified as serious medical treatment:
i) Diphtheria, tetanus and whooping cough are all serious bacterial infections, each of which are potentially fatal and each of which are now rare in the UK due to the success of the
vaccination
programme;
ii) Polio is serious viral infection, also rare as a consequence of the
vaccination
programme;
iii) Pneumococcus and meningitis B and meningitis C are each contagious bacterial infections which can lead to meningitis which can be fatal and with many who survive
having
serious permanent problems including learning difficulties and loss of limbs;
iv)
Haemophilus
influenzae is a contagious bacterial infection that causes meningitis and a number of other serious illnesses. Although rare, due to the
vaccination
programme, 1 in 20 of those who contract the disease will die.
- Three well known childhood infectious viral diseases are
vaccinated
via the well-known MMR
vaccine
(Mumps, Measles and Rubella):
i) Measles can cause pneumonia and encephalitis and, rarely, death. Due to the fall in the uptake in the MMR
vaccination
it
has
become more common in the UK with 991 cases confirmed in 2018;
ii) Mumps can be complicated by meningitis, encephalitis,
hearing
loss, and pancreatitis;
iii) Rubella can cause a flu-like illness and rash. If contracted by a non-immune pregnant woman it can cause miscarriage and severe birth defects.
- Dr Douglas set out the recognised side-effects of
vaccination.
It is unnecessary to set them out in detail
here
as
Hayden
J quoted the relevant evidence in full at paragraph [18] of
his
judgment. Most commonly, the relevant
vaccines
can cause minor side effects in the form of short lived fever, irritability and pain and swelling at the injection site.
- The MMR
vaccine
is slightly different in that it is comprised of a combination of attenuated live measles, mumps and rubella viruses which can, a little time after the injection, lead to the child getting a mild form of measles or mumps which lasts a couple of days. Certain rare complications exist but these are less likely to occur from the effects of the
vaccination
than from the natural virus infection.
- Finally, when considering
vaccinations,
Dr Douglas makes a further three points:
i) Extensive research
has
not shown any link with the MMR
vaccine
and autism;
ii)
Vaccinations
in the UK no longer contain thiomersal (a compound containing mercury) and there is no evidence that the small amounts of aluminium in some
vaccines
cause problems such as dementia or autism;
iii) Single
vaccinations
for the various diseases which are given in combined
vaccinations
are not recommended as there is no evidence that they are either more effective or safer in terms of side effects.
- For the purposes of this judgment, it is only necessary to consider the first of these points, namely the absence of any link between the MMR
vaccine
and autism. Some consideration of this issue is required in order to provide the context against which a determination can be made by this Court as to whether
vaccinations
are of themselves of such 'gravity' or 'seriousness' that a local authority cannot grant consent pursuant to its powers under s.33(3) CA 1989.
- Most, although not all, of the concerns about the safety of
vaccinations
which
have
led to the courts' involvement in decisions as to whether a child should be
vaccinated
relate to the MMR
vaccination.
This
vaccination
was introduced in this country in 1988 and became part of the routine immunisation programme carried out through the primary care programme and, particularly,
health
visitor services.
The Wakefield paper
- The nationwide
vaccination
programme in the United Kingdom was significantly undermined in 1998 as a consequence of the publication of a paper in The Lancet which purported to link the MMR
vaccination
with autism in children who
had
been
vaccinated.
- Dr Andrew Wakefield was a Senior Lecturer in the Departments of Medicine and
Histopathology
at the Royal Free
Hospital.
In 1996,
he
submitted an application to the Ethics Committee of the Royal Free
Hampstead
NHS Trust in which
he
sought approval for a project involving a number of children, entitled: 'A new paediatric syndrome: enteritis and disintegrative disorder following measles/rubella
vaccination'.
He
stated that the project would involve carrying out investigations on children who
had
been
vaccinated
with the MMR
vaccine
and who
had
manifested disintegrative disorder, and symptoms of intestinal disease or dysfunction. On the basis of the information provided in the application, the Ethics Committee granted approval for the project (Project 172-96). Dr Wakefield's study/project,
however,
expanded, without approval, to involve children who
had
received the MMR
vaccine,
and who
had
autism/suspected autism, in addition to gastrointestinal problems.
His
investigations were written up in a paper entitled Ileal-Lymphoid Nodular
Hyperplasia,
Non-Specific Colitis and Pervasive Developmental Disorder in Children. The paper, which was co-written by 12 authors including Dr Wakefield, was published in 1998 in the general medical journal The Lancet (1998) 351. The paper claimed to
have
established a potential link between the MMR
vaccine
and autism.
- After widespread publicity followed the publication of Dr Wakefield's claims, there was a drastic reduction in MMR
vaccination
rates and a corresponding increase in cases of measles. By 2005, the MMR
vaccination
uptake
had
fallen to 81% in the UK.
- It subsequently transpired that Dr Wakefield
had
omitted to declare a number of conflicting interests when
he
submitted the paper for publication; for example, that
he
and the parents of some of the children in the study were involved in a legal dispute attempting to show that MMR
vaccination
was linked to autism. By 2004, 10 of the 12 co-authors of the 1998 paper
had
withdrawn their support for the claimed link with autism.
- In June 2006, the General Medical Council (GMC) began an investigation into the alleged misconduct of Dr Wakefield and two of
his
former colleagues who
had
also been involved in the study. The allegations, and subsequent findings, ranged from Dr Wakefield's undisclosed conflict of interest when publishing the research, to the use of unethical treatment of autistic children. The GMC found Dr Wakefield guilty of more than 30 charges, and in May 2010
he
was struck off the medical register. Dr Wakefield's paper
has
since been wholly discredited and on 2 February 2010 The Lancet formally retracted it.
Subsequent research
- It
has
subsequently been confirmed that there is no link between autism and the MMR
vaccine.
The NHS England website states that
"…there
has
not been a single credible study that
has
shown a risk of MMR causing autism, despite tens of millions of children around the world receiving the
vaccine.
On the contrary, numerous
high-quality
research studies support the safety of MMR".
- A paper in May 2014 (
Vaccines
are not associated with autism: an evidence-based meta-analysis of case-control and cohort studies, Taylor and others,
Vaccine
32(29)) analysed cohort studies involving over 1.2 million children and showed no link between
vaccination
and autism, and no relationship between autism and MMR, or thiomersal, or mercury.
- A major study in March 2019 (Measles, Mumps, Rubella
Vaccination
and Autism,
Hviid
and others, Annals of Internal Medicine 170(8)) again found no link between MMR and autism. This study, conducted by researchers from Statens Serum Institut and the University of Copenhagen in Denmark, and Stanford University School of Medicine in the United States, involved 657,461 Danish children, born between 1999 and 2010, who were monitored until they were 8 years old. Of the children, 95%
had
received the MMR
vaccine,
and only around 1% of them (6,517) developed autism. Critically, there was no difference in the rates of autism between those who
had,
and
had
not, been
vaccinated.
Further, there was also no link found between the MMR
vaccine
and those children who may be at
higher
risk of developing autism, such as those who
had
an autistic sibling. The researchers thus concluded:
"The study strongly supports that MMR
vaccination
does not increase the risk for autism, does not trigger autism in susceptible children, and is not associated with clustering of autism cases after
vaccination.
It adds to previous studies through additional statistical power and by addressing
hypotheses
of susceptible subgroups and clustering of cases."
- Most recently, on 20 April 2020, an updated Cochrane review (Does the measles, mumps, rubella and varicella (MMRV)
vaccine
protect children, and does it cause
harmful
effects? Di Pietrantonj and others, Cochrane Database of Systematic Reviews 2020, Issue 4. Art. No.: CD004407) considered 138 studies with more than 23 million children. It concluded that MMR
vaccines
are effective in preventing the infection of children by measles, mumps, rubella and chickenpox, with no evidence of an increased risk of autism or encephalitis and a small risk of febrile seizure.
- Whilst
vaccination
rates
have
recovered in recent years, they
have
not achieved the pre-Wakefield rates, with the inevitable risk to the children that the
vaccinations
are designed to protect and the child population as a whole who previously
had
the protection brought about by
herd
immunity.
- It follows that, no matter what legitimate concerns parents may
have
had
following the publication of Dr Wakefield's discredited paper, there is now no evidence base for concerns about any connection between MMR and autism. On the contrary the evidence, as set out in the unchallenged report of Dr Douglas in this case, overwhelmingly identifies the benefits to a child of being
vaccinated
as part of the public
health
initiative to drive down the incidence of serious childhood and other diseases.
- I
have,
in (relatively) short form, rehearsed the
history
in relation to the MMR controversy and summarised Dr Douglas' mainstream analysis in relation to the other
vaccinations
which are
habitually
given to children. I do so as it is my
hope
that it will serve to bring to an end the approach which seems to
have
grown up in every case concerning
vaccinations,
whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of
vaccinations
as being "necessary to assist the court to resolve the proceedings" (FPR 2010 r.25.4(3)).
- In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in
vaccinating
a child in accordance with Public
Health
England guidance can be taken to outweigh the long-recognised and identified side effects. Any expert evidence should ordinarily, therefore, be limited to case where a child
has
an unusual medical
history
and to consideration of whether
his
or
her
own circumstances throw up any contra-indications, as was the case in relation to one specific
vaccine
in Re C and F (Children) [2003] EWHC 1376 (Fam) (Re C and F) (see paragraph [320]).
- I should be clear that I am
here
dealing with the purely medical issues which may arise in any specific case, and am not seeking to narrow the broader scope of a child's welfare and of any other relevant considerations which it may be appropriate for a local authority or a court to take into account when considering
his
or
her
best interests when considering the question of
vaccination.
Care proceedings in the context of serious medical treatment
- It is the parents' case that immunisation is serious medical treatment and that any dispute between a local authority and a parent as to whether a child in care should be
vaccinated
must be brought before the
High
Court pursuant to the court's inherent jurisdiction for determination. For this, they rely on recent authority, and in particular the decisions in In re AB (A Child)(Care Proceedings: Medical Treatment) [2018] EWFC 3 (Re AB) and in Re SL (above).
- For some time, the courts
have
been concerned with the interrelation of care proceedings and serious medical treatment. A Local Authority v SB, AB and MB [2010] EWHC 1744 (Fam), [2010] 2 FLR 1203 concerned an application by a local authority to withdraw care proceedings in relation to a 6 year old child who
had
a rare progressive brain disease. The local authority accepted that the threshold for care proceedings could not be satisfied. The NHS Trust
had
declined to intervene in order to make any applications for declarations in relation to medical treatment, notwithstanding their considerable concerns at the lack of co-operation by the parents. The Trust wished to continue to attempt to work with the parents. It followed that the "risk of significant
harm"
criterion necessary to invoke s.100 by the local authority could not be satisfied in that case. Sir Nicholas Wall P said that in those circumstances the court's only function was to determine whether to give the local authority permission to withdraw the care proceedings:
"[28]… The decision whether or not MB should undergo surgery is for
his
parents, not for the court. They are the only people with parental
responsibility.
Section 100 of CA 1989 prohibits the LA from inviting me to adjudicate on the issue."
- In Re Jake (A Child) [2015] EWHC 2422 (Fam); [2015] All ER (D) 1112, Sir James Munby P considered the case of a gravely ill child in relation to whom the local authority
held
an interim care order and therefore parental
responsibility
pursuant to s.33(3) CA 1989. The NHS Trust applied for urgent declarations to the effect that it would not be in the best interests of the child to continue to receive medical treatment. Sir James made the declarations sought and in the order, included the following recital:
"(2) It (the local authority) considers that it is appropriate that the court makes the decision as to the withholding of serious medical treatment for Jake;
(3) It actively encouraged the
Hospital
to make the application to the court for a declaration regarding the withholding or not of medical treatment not as an abrogation of its shared parental
responsibility
but rather as an acknowledgment that it is not appropriate for a local authority to give its consent to such serious medical intervention and also to relieve the parents of some of the burden of
having
to make such a painful and momentous decision as to their son's
health
(regardless of whether or not they
have
capacity to make such a decision)."
- In Re AB, the court was concerned with a little boy aged 4 who was profoundly disabled as a consequence of a life limiting neuro-degenerative disorder. Unhappily, the relationship between the local authority and the parents broke down and care proceedings were issued and a care order was made.
- The parents appealed. At the appeal
hearing,
reported at An NHS Trust v AB (A Child) [2016] EWCA Civ 899, I raised with the parties the question as to whether care proceedings were in fact the appropriate route in a case of this nature. The appeal was allowed and the application for a care order was remitted for rehearing. It was anticipated that at the retrial, the issue of jurisdiction would be a matter for consideration. In the light of further medical evidence, the local authority revised its position at the rehearing and it no longer sought to establish the threshold criteria or to remove AB from the care of
his
parents.
- It was in this context, and against this unusual and extreme background, that Sir James Munby P disposed of the case by consent 'on paper'.
He
gave a judgment saying:
"24. In the circumstances, I
have
not
had
occasion to consider the important jurisdictional and other questions identified by the Court of Appeal. Further consideration of these matters must await another day. I think I can,
however,
properly make four observations:
(i) Cases such as this (In re Jake (A Child) [2015] EWHC 2442 (Fam); [2016] 2 FCR 118, is another example) raise very complex issues, as yet little explored in the authorities, as to whether the appropriate process is by way of application for a care order or application under the inherent jurisdiction. Local authorities need to think long and
hard
before embarking upon care proceedings against otherwise unimpeachable parents who may justifiably resent recourse to what they are likely to see as an unnecessarily adversarial and punitive remedy.
(ii) A local authority does not need any specific locus standi to be able to invoke the inherent jurisdiction: see In re D (A Minor) (Wardship: Sterilisation) [1976] Fam 185; [1976] 2 WLR 279. Section 100 does not prevent a local authority invoking the inherent jurisdiction in relation to medical treatment issues: see In re C (Children) (Child in Care: Choice of Forename) [2016] EWCA Civ 374; [2017] Fam 137, para 97.
(iii) Whatever its strict rights may be, a local authority will usually be ill-advised to rely upon its parental
responsibility
under section 33(3)(a) of the 1989 Act as entitling it to authorise medical treatment opposed by parents who also
have
parental
responsibility:
see Barnet London Borough Council v AL [2017] EWHC 125 (Fam); [2017] 4 WLR 53, para 32, and the discussion in In re C (Children) (Child in Care: Choice of Forename), paras 92–95. For a local authority to embark upon care proceedings in such a case merely to clothe it with parental
responsibility
is likely to be problematic and may well turn out to be ineffective."
- Sir James Munby's observations in Re AB were picked up by Recorder
Howe
QC in Re T (A Child)(No 2) [2018] EWFC B7. In that case, the Recorder was concerned with a local authority's application to administer various drugs on the recommendation of a psychiatrist to a disturbed child currently living in secure accommodation. The Recorder, not surprisingly on the facts of the case, concluded that it would be inappropriate for the local authority to give consent to the administration of the drugs concerned. At paragraph [32]
he
relied on the observations of Sir James Munby at paragraph [62] above in support of
his
decision.
- I agree with Sir James that the use of care proceedings as a route to bring such difficult and sensitive cases before the court is to be deprecated in circumstances where parents are otherwise unimpeachable: see E (A Child) [2018] EWCA Civ 550 at where I said:
"107. Care proceedings in serious medical treatment cases will, and should, be issued only where there are significant additional issues of concern in respect of the care given by the parents to the child over and above a disagreement with the clinicians as to future care and treatment…"
- In such circumstances, the more appropriate, and more usual, way in which to bring such matters before the court is, as in Re Jake, by the NHS Trust
responsible
for treating the child to institute proceedings by invoking the court's inherent jurisdiction and seeking declarations in respect of the future treatment of the child. In such inherent jurisdiction proceedings, where the applicant is not a local authority but an NHS Trust, the threshold criteria
have
no role and the sole criterion is the best interests of the child: E(A Child) at paragraph [62] onwards. The requirement in s.100(4)(b) for reasonable cause to believe that there will be a likelihood of significant
harm
is designed to prevent a local authority from circumventing the ordinary requirements of s.31. Where an NHS Trust is the applicant, there will inevitably be a serious medical issue to decide and the requirement for a threshold condition is not therefore necessary.
- By contrast, where a child is already in care, the s.31 threshold criteria
have
been satisfied and the welfare of the child
has
necessitated the making of a care order (as opposed to care proceedings being used as a vehicle to bring the matter before the court). It was in those circumstances that Sir James said (see paragraph [62] above) that, notwithstanding a local authority's strict rights under s.33(3)(b) CA 1989, it would be "ill-advised" to rely upon those rights as entitling it to "authorise medical treatment".
- It must be borne in mind that Sir James
had
not
heard
argument on the s.33(3)(b) issue and was making, at first instance, an "observation". It is unclear whether, in making
his
general observation,
he
meant to include all medical treatment of whatever nature, or only of the type with which
he
(and all the other cases in this section of the judgment) were concerned, namely a desperately ill child. In the unlikely event that Sir James' view that a local authority should not use its powers under s.33(3)(b) CA 1989 related to any medical treatment, then, with the greatest of respect, I would disagree
- I turn, therefore, to consider
how
the courts
have
approached cases where the dispute
has
related to the
vaccination
of a child. I note before proceeding further that Counsel
have
been unable to find any reported case, whether in the public or private law sphere, where, following a contested
hearing,
an application for
vaccination
has
been refused.
Private law
vaccination
cases
- In Re C and F, Sumner J granted applications for specific issue orders sought by two fathers in respect of their daughters requiring each of them to be given age-appropriate immunisations. Each of the mothers opposed the applications on the basis that immunisations posed an unacceptable risk to the
health
of children. The
hearing
lasted for over two weeks. The judge
heard
extensive medical evidence and analysed each of the
vaccinations
proposed to be given to the children in minute detail in a judgment running to 370 paragraphs before concluding that it was in the best interests of each of the
healthy
children to be
vaccinated.
- In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095) (Re C (Immunisation)), the Court of Appeal dismissed the appeal from Sumner J's decision. In
his
judgment, Thorpe LJ said:
"15. Section 2 deals with parental
responsibility.
Section 2(7) provides:
"Where more than one person
has
parental
responsibility
for a child, each of them may act alone and without the other (or others) in meeting that
responsibility;
but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child."
16. The apparent freedom of each to act alone is not,
however,
unfettered. As the President said in the case of Re J [2000] 1 FLR 571 at 577:
"There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental
responsibility,
ought not to be carried out or arranged by one parent carer although she
has
parental
responsibility
under section 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child's surname is another."
17. In that case the court
held
that the circumcision of the child should only be carried out where the parents agree or where a court, in settling the dispute between them, decides that the operation is in the best interests of the child. In my opinion this appeal demonstrates that
hotly
contested issues of immunisation are to be added to that 'small group of important decisions'."
- More recently, in F v F (MMR
Vaccine)
EWHC 2683 (Fam); [2014] 1 FLR 1328 (F v F), Theis J made specific issue orders,
having
held
that it was in the best interests of two children to receive the MMR
vaccination.
"[9] This issue
has
come before the court on two occasions before. In Re C (Welfare of Child: Immunisation) [2003] EWCA] Civ 1148, [2003] 2 FLR 1095 the Court of Appeal dismissed the mother's appeal against the decision of Sumner J to order
her
to
have
her
child immunised with the MMR
vaccine.
This issue was between two parents. Sumner J
heard
from a number of experts in paediatric immunology and infectious diseases and
he
concluded that the benefits of
having
the
vaccinations
outweighed the risks.
He
made it clear that each case was fact specific. In the Court of Appeal Thorpe LJ rejected the 'repeated categorisation of the course of immunisation as non-essential invasive treatment. It is more correctly categorised as preventative
healthcare',
(at para [22]). In Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), (unreported) 26 May 2011, I considered the issue of
vaccinations
in the context of children who were the subject of final care orders where there was a dispute between the local authority and the parents as to whether the children should be
vaccinated.
I concluded the children in that case should be
vaccinated.
The expert in that case, Dr Ward, comprehensively addressed the link between the MMR
vaccine
and autism and the consequences of getting these diseases. I set those out at para [16] of that judgment:
(a) Measles, mumps and rubella are serious infections, each of which carried an appreciable risk of dangerous complications in
healthy
individuals.
Vaccination
is the only practical way to prevent an individual from contracting infection, and all the evidence is that it is effective and
has
a very low level of side effects, which are generally mild and transient …
(d) With due consideration for established contraindications to
vaccination
in an individual case, it is otherwise in every child's interest to be protected."
- In Re B (A Child: Immunisation) [2018] EWFC 56,
HHJ
Clifford Bellamy, sitting as a Deputy Judge of the
High
Court, ordered the immunisation of a child in private law proceedings.
"2. The issue is properly categorised as an issue of preventative
health
care rather than medical treatment. In the UK the
vaccination
of children is not compulsory. The
vaccination
of very young children, though strongly recommended, is a decision which the State entrusts to parents to determine as part of their parental
responsibility.
Such a decision would not be brought to court if the parents were agreed that the
vaccination
should not be given."
- Once again, in Re B an eminent expert
had
been instructed in the proceedings. The expert, in addition to considering the child in question and concluding that there were no contra-indications which would militate against
her
being
vaccinated,
trawled through each of the diseases subject to
vaccinations.
The Deputy
High
Court Judge reviewed each of the reported cases in relation to
vaccinations
noting that in each case expert evidence
had
been commissioned. In making the orders for immunisation,
he
concluded:
"93. In making that order, like MacDonald J, I make it clear that my judgment is not a commentary on whether immunisation is a good thing or a bad thing generally. I am not saying anything about the merits of
vaccination
more widely. I do not in any way seek to dictate
how
this issue should be approached in other situations. I am concerned only to determine what is in B's best welfare interests.
94. That said, it is, in my judgment, appropriate to make the point that this is now the sixth occasion when the court
has
had
to determine whether a child should be
vaccinated
in circumstances where a birth parent objects. On each occasion the court
has
concluded that the child concerned should receive the recommended
vaccine
(save that in Re C and F (Children) Sumner J decided that the older child, aged 10, should not
have
the
HIB
vaccine,
because the danger for
her
had
passed, or the Pertussis
vaccine,
because there was no approved
vaccine
for a child of
her
age). With respect to the
vaccines
with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those
vaccines,
it is difficult to see
how
a challenge based on efficacy or safety would be likely to succeed."
- I completely agree with the views of the Deputy
High
Court Judge as to future challenges to the efficacy/safety of the relevant
vaccines.
In my judgment, by 2010 at the very latest, when Dr Wakefield
had
been struck off and The Lancet
had
unequivocally retracted
his
article, there
has
been no evidential (or other basis) for suggesting that there is a link between MMR and autism. The contrary was established in the 2014 and 2019 research papers and summarised in the latest Cochrane review. The other
vaccinations
which are routinely given to children
have
not been the subject to the same
high-profile
concerns as to their safety. In case after case
however,
they too
have
been the subject of detailed lengthy and expensive expert testimony whenever there
has
been a dispute as to whether a child should be
vaccinated.
Public law
vaccination
cases
- Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 is the public law case to which Theis J referred in F v F (see paragraph [71] above). This was a case where a local authority
had
invoked the inherent jurisdiction of the court in relation to children in respect of whom they
had
care orders and where the parents objected to the proposed immunisation of the children. Theis J was not asked to consider whether s.100 CA 1989 was the appropriate jurisdictional route but rightly noted that once the inherent jurisdiction
had
been invoked, the welfare of the children concerned is paramount (paragraph [9]).
- Theis J's unequivocal conclusion,
having
heard
medical evidence which dovetailed entirely with that
heard
by Sumner J, is that "with due consideration for established contraindications to
vaccinations
in an individual case, it is otherwise in every child's best interest to be protected against mumps, measles and rubella".
- It was not until Re SL came before MacDonald J that the issue of
vaccinations
in the context of s.33(3) CA 1989 came to the fore. The local authority
had
been granted an interim care order in respect of a 7 month old baby. An order granting a declaration in the care proceedings that it was in the best interests of the baby to receive the recommended
vaccinations
was made in the context of the local authority "acknowledging that it would be inappropriate to unilaterally exercise their conferred parental
responsibility
where a parent objected to the baby being
vaccinated".
Against the backdrop of that concession, MacDonald J did not
have
the benefit of the s.33 issue being argued before
him
in the way it was before
Hayden
J. It goes without saying that the decision in Re SL, that the child should be
vaccinated,
was undoubtedly right.
- It is this difference in view as between
Hayden
J in this case and MacDonald J in Re SL that
has
brought this matter before the court, notwithstanding that the parents no longer seek to appeal the order for
vaccination
made by the judge.
- The key elements of
Hayden
J's judgment were that:
i)
Vaccinations
are not medical treatment but a facet of public preventative
healthcare;
ii) Such applications should be regarded as being 'at the least intrusive end of the scale of intervention';
iii) There is no reason why routine
vaccinations
should not fall within s.33 CA 1989;
iv) The risks contingent upon not
vaccinating
a
healthy
young infant significantly outweigh the benefits (of not
vaccinating);
v) Each child must be considered individually with
his
welfare as the paramount consideration.
His
or
her
health
record should be taken into account to ensure that there are no relevant contra-indications before a decision is taken by the local authority to
vaccinate.
- MacDonald J's contrasting approach can be seen from the following passage from
his
judgment in Re SL:
"31. Thus, where there is a dispute between those
holding
parental
responsibility
(whether as between parents or between parents and a local authority
holding
a care order) as to whether such a
vaccination
or
vaccinations
should take place the court
has
jurisdiction to determine the dispute. In determining the question before the court, the welfare of the child is the paramount consideration of the court. Within this context, the court must accord appropriate weight to the views of the parent or parents
having
assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence.
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 is between the local authority sharing parental
responsibility
for the child and the parent 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 (see A Local Authority v SB, AB & MB) [2010] 2 FLR 1203 and Re Jake (Withholding Medical Treatment) [2015] EWHC 2442 (Fam)).
33. In the circumstances, as in Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), and whilst the C2 application made by the local authority on 21 October 2016 is for an order in existing Children Act proceedings, the application the local authority pursues before this court must in fact be an application for relief under the inherent jurisdiction of the
High
Court. The local authority requires leave to make such an application, which application for leave is to be considered against the criteria set out in s 100(4) of the Children Act 1989. Being satisfied that the relief sought by the local authority does not contravene s 100(2) of the Children Act 1989 and that the criteria for granting leave to the local authority to make an application under the inherent jurisdiction set out in s 100(4) of the Act are met, I granted permission for the local authority to make an application for relief under the inherent jurisdiction of the
High
Court." [Emphasis supplied]
Is
vaccination
medical treatment?
- During the course of argument, we indicated to Ms Grief QC on behalf of the local authority, that we did not think that the nomenclature attached to
vaccinations
mattered a great deal, that is to say whether they are categorised as 'medical treatment' or as 'preventative
health
care'. The critical issue was, we suggested, whether immunisations are to be regarded as 'grave' or 'serious' in the context of the exercise of parental
responsibility
by a local authority such as to require the sanction of the court when a dispute arises.
- Following the
hearing,
in
response
to the
handing
down of our judgments in draft, the parties drew our attention to the terms of s.45E of the Public
Health
(Control of Disease) Act 1984, which forms part of a series of amendments to the 1984 Act that were enacted in 2008 and came into force in 2010. Section 45E appears in Part 2A, which concerns public
health
protection. Powers are given to the appropriate Minister to make orders or regulations in
response
to the incidence or spread of infection in England and Wales. Section 45E provides that such regulations may not require a person to undergo medical treatment, and states that "medical treatment" includes
vaccination
and other prophylactic treatment.
- Mr Bailey argues that this provision shows that Parliament regards
vaccination
as medical treatment, that we are bound to reach the same conclusion, and that this should lead us to the view that the
vaccination
of a child in care is a grave matter requiring court approval where a dispute exists. We do not accept this logic, for these reasons:
i) As Ms Grief contends, the test for whether a local authority could exercise its powers under s.33(3)(b) CA 1989 should be addressed through the prism of the relative seriousness or gravity of a particular decision; it does not depend upon whether
vaccination
is to be classified as medical treatment or not.
ii) I note,
however,
that this court
has
touched on the issue in Re C (Immunisation), where Thorpe LJ said:
"22. In any event I reject Miss Gumbel's repeated categorisation of the course of immunisation as non-essential invasive treatment. It is more correctly categorised as preventative
health
care. Mr Cohen in
his
response
drew attention to the United Nations Convention of the Rights of the Child emphasising Article 6(2): 'States Parties shall ensure to the maximum extent possible the survival and development of the child'. More specifically
he
drew attention to Article 24:"
"1. States Parties recognise the right of the child to the enjoyment of the
highest
attainable standard of
health
and to facilities for the treatment of illness and rehabilitation of
health.
States Parties shall strive to ensure that no child is deprived of
his
or
her
right of access to such
health
care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(a)-(e) …
(f) To develop preventive
health
care, …"
I would wholeheartedly follow this analysis insofar as it concerns the vital importance of preventative
health
care. It is important not to treat
vaccination
as comparable with the 'serious medical treatment' cases discussed above. Routine
vaccinations
are carried out all over the world and are a facet of the right of a child to "enjoy the
highest
attainable standard of
health"
pursuant to Article 6(2) of the UNCRC.
However,
I would not on reflection go so far as Thorpe LJ in identifying a dichotomy between medical treatment and preventative
health
care. It seems to me that the concepts overlap. There must be a place for preventative medical treatment and for preventative
health
care and for our purposes
vaccination
might be described in either way.
iii) I do not consider that s.45E requires us to reach the conclusion for which Mr Bailey contends. It is concerned with the definition of the rule-making power of the Minister and it does not purport to be a definition of universal application.
- It follows that I would depart from that part of
Hayden
J's analysis which categorises
vaccinations
as being a facet of public preventative
healthcare
rather than medical treatment. As I
have
said, the concepts overlap, but in the end the question is irrelevant to the real issue, to which I now turn.
Is the giving of a
vaccination
to be regarded as 'grave' issue?
- I cannot agree that the giving of a
vaccination
is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the
vaccination
of children under the UK public
health
programme is in itself a 'grave' issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism
has
been definitively disproved.
Can
vaccinations
be arranged by a local authority alone under s.33(3)(b) CA 1989?
- MacDonald J,
having
categorised immunisation as an issue of gravity, relied on A Local Authority v SB and Re Jake as authority for the proposition that a local authority cannot give its consent pursuant to s.33 CA 1989. Both those
High
Court cases are at the opposite end of the spectrum from
vaccinations.
Further, in neither case was the use by a local authority of s.33(3)(b) to give consent to medical treatment an issue.
- In A Local Authority v SB the powers under s.33(3)(b) were mentioned by Sir Nicholas Wall P only by a side wind with reference, at paragraph [31], to a judgment in Re O (A Minor)(Blood Transfusion) [1993] 2 FLR 149. In that case, Johnson J
had
accepted a submission that it is inappropriate for the court to make an interim care order and thereby activate s.33 CA 1989 where parents are "caring, committed and capable", with the only issue being their resistance to their child receiving a blood transfusion. That is a view with which I entirely agree: see paragraph [64] above.
- Likewise, in Re Jake the position of the local authority, who
held
a care order, was that it would not be appropriate for it to consent to the serious medical intervention proposed by the Trust. The local authority position was reflected in a recital to the declarations which were made (see paragraph [59] above). The court did not
hear
argument, and the case did not turn on the proper interpretation of s.33(3)(b).
- In Re SL, it was decided that the relief sought by the local authority did not contravene s.100(2) CA 1989. The judge said that the criteria for granting leave under s.100(4) were met and granted leave.
He
did not (I suspect because it was not argued before
him)
elaborate further, but it will be recollected that s.100(4)(b) requires the court to find that:
"(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child
he
is likely to suffer significant
harm."
- If MacDonald J was of the view that a
healthy
child is likely to suffer significant
harm
simply because
he
is not being
vaccinated,
I cannot agree. In my judgment,
here
lies the ultimate difficulty in the use of the inherent jurisdiction by a local authority in a routine immunisation case via the portal of s.100 CA 1989. If a parent in respect of whom there are no care proceedings cannot be considered to be causing a child to be likely to suffer significant
harm
when they decide not to
vaccinate
their child, I cannot see
how
can it be said now, for the purposes of s.100(4)(b), that that very same refusal on their part provides reasonable cause to believe that the child is likely to suffer significant
harm
if the inherent jurisdiction is not exercised.
Private and Public law contrasted
- MacDonald J did not seek to differentiate between those cases where there is a dispute between private law and public law proceedings, saying at paragraph [31] that the court
has
jurisdiction to determine the issue "whether as between parents or between parents and a local authority
holding
a care order" and that the court
has
jurisdiction to determine the dispute.
- This court
has
said that in private law cases where there is a dispute between the
holders
of parental
responsibility
about certain important decisions the matter should go before the court for determination by way of an application for a s.8 CA 1989 specific issue order: see Thorpe LJ in Re C (Immunisations) at paragraph [17].
He
said, it will be recollected, that immunisations were to be part of the "small group of important decisions" where, in the absence of the agreement of those with parental
responsibility,
the decision should not be made without the approval of the court. In 2003, when Thorpe LJ expressed that view, Dr Wakefield and
his
proposition as to a link between
vaccination
and autism
had
not finally been discredited. Now in 2020, 17 years later, all the evidence presently available supports the Public
Health
England advice and guidance which unequivocally recommends a range of
vaccinations
as being in the interests both children and society as a whole.
- This is not the case for this court to consider whether immunisation should properly continue to be a matter which must be brought to court where there is a private law dispute between the parents. It may be that time
has
moved on to the extent that Thorpe LJ's categorisation would now be revisited in the same way as the Supreme Court in XX v Whittington
Hospital
Trust [2020] UKSC 14 recently revisited the earlier decision in Briody v St
Helen's
and Knowsley Area
Health
Authority [2001] EWCA Civ 1010; [2002] QB 856. In XX, Baroness
Hale
held
at paragraph [48] that in the light of developments in the law, medical science and social attitudes, and contrary to the Court of Appeal's view expressed in Briody 19 years earlier, damages can now be claimed in a medical negligence case for the reasonable costs of surrogacy using donor eggs. A similar instance is provided by the decision in An NHS Trust v Y [2018] UKSC 46, where the Supreme Court revised the requirements of good practice laid down in Airedale NHS Trust v Bland [1993] AC 789 in the light of greater understanding and experience of prolonged disorders of consciousness.
- Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between
holders
of parental
responsibility,
there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person
has
parental
responsibility,
each of them may act alone and without the other. Section 2(7) does not
however
give one party dominance or priority over the other in the exercise of parental
responsibility.
Each parent
has
equal parental
responsibility,
even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate
households
and one parent is the primary carer. As Theis J put it in F v F at paragraph [21], "in most circumstances [the way parental
responsibility
is exercised] is negotiated between the parents and their decision put into effect." As neither parent
has
primacy over the other, the parties
have
no option but to come to court to seek a resolution when they cannot agree.
- The situation is, in my view, different in the public law sphere when a care order is in place. A care order is only made if the welfare of a child requires such an order to be made, it
having
been determined or conceded that pursuant to s.31(2) CA 1989, the child
has
suffered or is likely to suffer significant
harm
attributable "to the care given to
him
or
her
not being what it would be reasonable to expect a parent to give
him".
In other words, the child in question
has
suffered (or was likely to suffer)
harm
as a consequence of the care given to
him
or
her
by a person with parental
responsibility.
It is against that backdrop that the parent of a child in care
holds
parental
responsibility.
Parliament
has
specifically, and necessarily, given the local authority that
holds
the care order, the power under s.33(3)(b) to override the views of a parent
holding
parental
responsibility.
The local authority's view prevails in respect of all matters save those found in the statutory exceptions or where, as I identified in Re C, the decision to be made is of such magnitude that it properly falls within the provisions of s.100.
- The situation of a child in care is therefore a far cry from those cases which arise in private law proceedings where parents who share parental
responsibility
cannot agree on what is best for their child.
- For these reasons, I prefer the judge's analysis in the present case to the analysis in Re SL.
Proportionality
- It
has
not been argued by Mr Bailey on behalf of the parents that allowing the local authority to consent to the immunisation would represent a disproportionate breach of their Article 8 ECHR rights. I merely say for completeness that if such an action on behalf of the local authority does represent an infringement of the parents' or child's rights under Art 8 ECHR, I am satisfied that, when considered through the prism of Bank Mellat v
HM
Treasury (No 2) [2013] 3 WLR 179 (as endorsed in a family context in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 at paragraph [44]), any interference is proportionate.
The position of parents
- It is axiomatic that any local authority must involve parents in decision-making and take their views into account. Section 33 CA 1989 is not an invitation to local authorities to ride roughshod over the wishes of parents whose children are in care. As was recognised by the judge at paragraph [17], in the event that a local authority proposes to
have
a child
vaccinated
against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8
Human
Rights Act 1998 to prevent the child being
vaccinated
before the matter comes before a court for adjudication.
- The conclusion I
have
reached in relation to routine immunisations does not in any way diminish the importance of parental views where there is a real issue about what decision will best serve the welfare of a child. In the course of
his
judgment
Hayden
J referred to Re T (Wardship: medical treatment) [1997] 1 FLR 502. In that case, the issue was whether a 1 year old boy should be given a life-saving liver transplant against the wishes of
his
parents, who were themselves
health
care professionals. The issue was a finely balanced one and this court overturned the judge's order in favour of a transplant. In doing so, Waite LJ said this:
"All these cases depend on their own facts and render generalisations - tempting though they may be to the legal or social analyst - wholly out of place. It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child
health
and welfare widely accepted by the generality of mankind; and that at the other end lie
highly
problematic cases where there is genuine scope for a difference of view between parent and judge. In both situations it is the duty of the judge to allow the court's own opinion to prevail in the perceived paramount interests of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care
has
been entrusted by nature."
- The distinction drawn
here
between parental views that are inconsistent with the child's welfare and
highly
problematic cases where there is genuine scope for a difference of view remains a valuable one. It is a reminder that, while the views of parents must always be taken into account, the weight that is given to them depends not upon the vehemence with which they are expressed but upon their substance.
- As must
have
become clear, I do not share the inhibition felt by the judges in some of the decided cases in expressing the view that the scientific evidence now establishes that it is generally in the best interests of otherwise
healthy
children to be
vaccinated.
As Theis J said in F v F:
"With due consideration for established contraindications to
vaccination
in an individual case, it is otherwise in every child's interest to be protected'
It follows therefore that in my judgment, an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing the
vaccination
of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine
vaccinations.
- Applying these conclusions to the present case, the local authority could
have
used its statutory power to consent to T receiving routine immunisations at the appropriate times without the need to seek court approval. Any legal challenge the parents might
have
made would inevitably
have
failed. All that
has
been achieved by their opposition
has
been more delay and public expense. Fortunately, T's case offers the opportunity to ensure that this process need not be repeated in other similar cases.
Conclusion
- Pulling together the threads of this judgment, I
have
concluded that:
i) Although
vaccinations
are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be
vaccinated
in accordance with Public
Health
England's guidance unless there is a specific contra-indication in an individual case.
ii) Under s.33(3)(b) CA 1989 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, notwithstanding the objections of parents.
iii) The administration of standard or routine
vaccinations
cannot be regarded as being a 'serious' or 'grave' matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be
vaccinated,
it is neither necessary nor appropriate for a local authority to refer the matter to the
High
Court in every case where a parent opposes the proposed
vaccination
of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of
High
Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.
iv) Parental views regarding immunisation must always be taken into account but 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.
- It follows that the appeal will be dismissed and that the declaration made by the judge that the local authority
has
lawful authority, pursuant to s.33(3) CA 1989, to consent to and make arrangements for the
vaccination of T, notwithstanding the objection of the parents, will stand.
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