Re WSP (A Child) (Vaccination: Religious Objection): consent to vaccination for young children in care

Re WSP (A Child) (Vaccination: Religious Objection)1 is a case decided by the English High Court (Family Division) confirming a local authority’s power to ensure a young child in care had his routine childhood vaccinations despite non-consent from his mother. On the face of it, it is an unremarkable judgment since it carries on a line of authority the English courts have been developing over the last 20 years that it is generally in the best interests of otherwise healthy children to have their routine vaccinations.2 While it cannot be said with certainty that the same decision would be reached in Scotland due to the lack of case law in this area, the actual decision in the case is not the point I wish to focus on. Rather, what is exposed by considering similar facts arising in Scotland is the difference in effect of legal orders when a child needs care from the state and the consequential difference in legal procedure when the child themselves is too young to consent to their vaccination. In this short paper, I will argue that should a similar set of facts arise in Scotland the legal route by which consent to routine vaccinations could be given for a child in care is not as clear as it is in England. Instead, there are a variety of different legal options, none of which are entirely satisfactory for reasons of competence, enforcement and practicality. The United Nations Committee on the Rights of the Child has made clear that part of fulfilling a child’s right to the highest attainable standard of healthcare under Article 24 of the UN Convention on the Rights of the Child (UNCRC) is for states to ensure that ‘immuni[s]ation against the common childhood diseases’ is made ‘universally available’.3 Therefore, in some circumstances Scots law may have an unfortunate gap in the law for children in care with respect to fulfilment of this right.