Background

In WSP (A Child), Re (Vaccination: Religious Objection) [2023] EWHC 2622 (Fam), UPP, the mother of a 9-month-old boy, WSP, who had been in local authority care since March 2023, asked the Court to exercise its inherent jurisdiction to injunct the local authority from exercising its parental responsibility under s.33(3) Children Act 1989 to arrange for the child to receive several routine childhood vaccinations [1]. She maintained that it was not in WSP’s best interests to be vaccinated and that to vaccinate him without her consent would violate her rights under Article 9 ECHR, both alone and when taken together with Article 14, as given effect by the Human Rights Act 1998. The local authority and the guardian opposed the application [2].

Her reasons for opposing vaccination were that some of them use ‘Vero cells’ in their production and/ or development which are derived from the kidney of an African Green monkey, others use cattle- or pork-derived products, and all of them are at some stage tested on animals – and the local authority and guardian accepted that to be the case. She argued that the use of animal products or animal testing in the production of the vaccines meant that some (but not all) Muslims considered their use to be haram (forbidden) and that it would be contrary to her Muslim faith for WSP to be vaccinated. She was concerned that, if vaccinated, WSP would suffer emotional or psychological harm and that if he did something haram without repenting, “this would take him out of the fold of Islam, as he would not have adhered to the rulings of God made for people”. It would be harmful for him to have to repent for something he had no control over, and that might do him psychological damage [10].

The local authority and the guardian argued that her evidence of harm was speculative and not based on any objective evidence. They also pointed out that she had been vaccinated herself but had not suffered the same harm and that she had given inconsistent reasons for refusing vaccination [12].

The judgment

Paul Bowen KC (sitting as a Deputy Judge of the High Court) said, in effect, that it was settled law that childhood vaccinations were in the best interests of otherwise healthy children (In Re H (A Child) [2013] Fam 133) and that that was the established medical view [15]. The difference in the present case was that the mother objected to vaccination on the grounds of her religious beliefs, relying on Articles 9 and 14 ECHR [16 & 17]. He noted, however, that in Vavricka and Others v the Czech Republic [GC], 8 April 2021, about the legality of the Czech compulsory system of infant vaccination, the Grand Chamber had rejected the applicants’ Article 9 claim “on the basis that the ‘beliefs’ relied upon as founding the objection to vaccination, which were not grounded in religion, were insufficiently cogent, serious, cohesive and important to attract the guarantees of Article 9” [18].

The relevant principles, both at common law and under Article 9, had been set out by Munby LJ in Re G (Education Religious Upbringing) [2013] 1 FLR 677 at [20-51]. Article 9 protected two rights:  the right to hold (and change) any religious belief, which was absolute and unconditional, and the right to manifest one’s religious freedom in “worship, teaching, practice and observance”, which was a qualified right because its exercise might have an impact on others. That right might therefore be overridden by a state body, provided there was a sufficiently pressing need to do so for one of the purposes in Article 9(2) and the means used were both lawful and proportionate, applying the four-stage proportionality test in Bank Mellat v Her Majesty’s Treasury (No 2) (SC(E)) [2014] AC 700 [at 20] and allowing the state body an appropriate discretionary area of judgment. The upbringing of a child was clearly a “manifestation” of religious belief; however, a parental decision to consent or refuse to have a child vaccinated on religious grounds was a “manifestation” of religious belief that might be regulated by the state and its courts without breaching Article 9 [19].  As to Article 14, the discrimination argument had not been developed in any way [22].

In his judgment, the vaccination of WSP was in his best interests and a proper and lawful exercise of the local authority’s parental responsibility under s 33(3)(a) and its power to override the mother’s objections under s 33(3)(b) of the 1989 Act. The mother’s application for an injunction to restrain the vaccination was accordingly dismissed, for several reasons [23]:

• she had not produced “cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations” [24];
• in the absence of cogent, objective evidence of harm to WSP’s welfare, her objections on religious grounds did not otherwise outweigh the child’s welfare interests in receiving the vaccinations [25];
• that conclusion was consistent with her Article 9 rights because they might be overridden where the criteria in Article 9(2) were met – and there was “a pressing social need to vaccinate infant children to achieve the legitimate objectives both of protecting the vaccinated child and of securing the health and safety of the wider population through herd immunity” [26]; and
• her argument that she had been discriminated against unlawfully in the enjoyment of her Convention rights under Article 14 was ill-founded [28].

Application dismissed.

See also: Mark Smullan, Local Government Lawyer: High Court judge backs council decision on vaccination of child, rejects objections of mother.