A High Court in England refused an application by the mother of a nine-month old child to prevent the local authority from acting under the UK Children Act from administering routine childhood vaccinations including for diphtheria, tetanus, whooping cough, polio and hepatitis B. The opposition of the mother was based on religious grounds.
The facts are specific, but the principles are worth noting. In line with previous judgments, an application to invoke the inherent jurisdiction of the court or to seek an order preventing the vaccination of a child in care is unlikely to succeed unless the claimant puts before the court in support of the application cogent, objective, medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.
The court found that childhood vaccinations are in the best interests of otherwise healthy children according to established medical view, and have minimal side-effects. The plaintiff relied on the rights under the European Convention giving everyone the right of freedom of religion and non- discrimination. The right to hold and change religious beliefs is absolute and unconditional. But the right to manifest one’s religious freedom is qualified because it may have an impact on others and may be overridden by a state body if there is sufficient need to do so. Some aspects of the upbringing of children that are done in the name of religion are not protected by the Convention and a state may lawfully override the provisions. In the absence of medical evidence presented by the mother, the mother’s objections on religious grounds did not outweigh the welfare interests of the child in receiving the vaccinations. The object – the protection of the life and health of the child and of the wider public – was sufficiently important to justify a limitation on the mother’s right to manifest her religion whilst the child remained at risk of devastating consequences if infected from the diseases, even if rare. The child would also face the risk of being excluded from events and activities that other children are permitted to attend because of the child’s unvaccinated status. There was no evidence of discrimination against the mother and the mother’s request for an order preventing the vaccination was refused.
A South African court would almost certainly come to a similar conclusion faced with similar objections under the South African Bill of Rights.