Re C (Looked After Child) (Covid-19 Vaccination)

A local authority holding a care order may arrange and consent to Covid-19 or winter flu vaccination for a looked-after child under section 33 of the Children Act 1989, despite parental objection, where the vaccination forms part of an ongoing national programme, the child is either not Gillick competent or is Gillick competent and consents, and the authority is satisfied that vaccination is necessary to safeguard or promote the child’s welfare.

Routine vaccination is not ordinarily a grave decision requiring court authorisation. Expert evidence is unnecessary without an identifiable, well-evidenced individual contraindication or significant new peer-reviewed evidence concerning safety or efficacy.

The local authority sought confirmation that, while a care order was in force, it could arrange and consent to Covid-19 and winter flu vaccinations for C, aged nearly 13, under section 33 of the Children Act 1989. C wished to receive both vaccinations, as did his guardian and father. His mother strongly objected.

The authority relied on the Court of Appeal’s decision in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664. It alternatively invited the court to exercise its inherent jurisdiction. The central issues were whether section 33 authorised the proposed decisions and, if not, whether vaccination was in C’s best interests.

1. Application dismissed as unnecessary under the inherent jurisdiction. The court held that section 33(3)(b) of the Children Act 1989 applied to both vaccinations. The principles in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 applied equally to Covid-19 and winter flu vaccinations forming part of national programmes.
2. A local authority may arrange and consent to vaccination where:
   • the vaccination is part of an ongoing national programme approved by the UK Health Security Agency;
   • the child is not Gillick competent, or is Gillick competent and consents; and
   • the authority is satisfied that the decision is necessary to safeguard or promote the individual child’s welfare.
   No prior application to the High Court is required.
3. In the absence of a substantial, realistically evidenced concern relating to the individual child, routine vaccination under a national programme is not a grave decision with profound or enduring consequences. The existence of medical risk does not alter that conclusion, since both vaccination and non-vaccination carry risks. The court may rely on the evidence underlying an established national programme without conducting a wholesale review of that evidence.
4. Expert evidence is not required merely because vaccination safety is asserted. It may become relevant where there is an identifiable, well-evidenced individual contraindication or significant new peer-reviewed evidence raising concern about efficacy or safety.
5. The court noted an important qualification concerning older children. A child of 12 is not conclusively presumed Gillick competent, and competence is child-specific and decision-specific. The views of a Gillick-competent looked-after child deserve due respect. The unanswered question whether a local authority could override a competent child’s refusal did not arise.
6. Section 33 does not confer carte blanche. The authority must make an individualised welfare decision. Parents may invoke the inherent jurisdiction and, where necessary, seek an injunction under section 8 of the Human Rights Act 1998.

Had it been necessary, the court would have found both vaccinations in C’s best interests.