Childhood immunisation is a key tool in disease control and the main instrument in the government's campaign to achieve the World Health Organization (WHO) target for interrupting indigenous measles, poliomyelitis, neonatal tetanus, congenital rubella and diphtheria transmission (Spika et al, 2003). However, rates of immunisation have fallen with anti-vaccination messages on social media being blamed for increased parental concern about the safety of vaccines (Moran, et al, 2016). UNICEF statistics show that half a million children did not have vaccinations in the UK between 2010 and 2017 (UNICEF 2018). As a result, immunisation uptake for the MMR (measles, mumps and rubella) vaccine at around 91% in England remains lower than the 95% rate required to achieve population immunity needed to effectively interrupt the transmission of disease (NHS Digital, 2018).
Public health or parental choice
The Health Secretary has recently suggested that the government would not rule out compulsory vaccinations in England to overcome the public health risk caused by lowered immunisation rates (Mohdin, 2019).
If minded the government could employ a number of legal tools to achieve population immunity targets. One approach might be to follow the lead of the USA and make state school entry dependent on prior vaccinations. In the state of Arizona, for example, entry into child care and school is dependent on the child being immunised and the requirement continues through the child's schooling (ARS section 36-672). The Supreme Court in the USA held for the earliest days of immunisation that compulsory or mandated vaccination is not unconstitutional and the case has seen off repeated attempts to have it overturned (Jacobson v. Massachusetts, 197 U.S. 11 (1905)).
Compulsory immunisation in the UK
While Jacobson v. Massachusetts, 197 U.S. 11 (1905) forms the basis for public health enforcement in the USA, attempts to introduce compulsory vaccination in the UK have been less successful. Any decision to make childhood immunisation compulsory would be for parliament. As such the history of compulsory immunisation programmes would be considered before any decision was made.
Compulsory immunisation for smallpox was introduced in England and Wales by the Vaccination Act of 1853. The legislation was extremely unpopular and strongly resisted by the Victorians, who saw compulsory vaccination as an extreme example of class legislation with its enforcement carried under Poor Law provisions. The policy and administration implicitly targeted working-class infants and inflicted multiple penalties on members of the public, who considered themselves conscientious objectors. In 1867 a more elaborate administration system was established that allowed repeated fining of parents who refused to comply and seizure of goods to pay such fines or even imprisonment. This was extended by the Act of 1871. Public outcry continued, however, and faced with election defeat the government was eventually forced to decriminalise the Vaccination Acts. The state's action of 1853 and beyond is more than any UK government has attempted since. No modern government, even when facing a deadly disease such as diphtheria, and possessing a certain vaccine, has dared to force vaccination on the population. Given its history it would be a bold step by government to reintroduce compulsory vaccination anywhere in the UK.
Approach of the Courts
As immunisation is not compulsory in the UK the courts cannot simply insist that children are vaccinated. Where parents are in dispute with each other over the issue of immunisation then if negotiation fails they can resort to the litigation. As with any case involving a child the courts are obliged to follow the provisions of the Children Act 1989 and consider the best interests of the welfare of that child.
Childhood immunisation has been considered recently in F v F (MMR vaccine) [2013] and Re B (A child: Immunisation) [2018] where the court ruled that the child should receive the vaccinations.
As the cases concerned fundamental issues of parental responsibility the Family Court heard the case under the provisions of section 8 of the Children Act 1989. This provides private law remedies to settle matters of parental responsibility concerning a child. Unlike public law child protection procedures the threshold criteria for state intervention, namely a risk of significant harm, does not have to be met in private law cases and the court may settle any matter as long as it has to do with the parental responsibility of a child.
There have now been six cases where the courts have been asked to decide whether a child should be immunised because one birth parent has objected. The courts continue to hold that there is ample expert opinion in favour of immunisation. In the absence of evidence of new peer-reviewed research indicating significant concern for the efficacy or safety of vaccines, it was difficult to see how a challenge based on those concerns would be likely to succeed (Re B (A child: Immunisation [2018])).
Practicality of enforcement
Despite the granting of specific issues orders it is known that enforcement is difficult. The measures available to the court are at the discretion of the judge who will balance the best interests of the child against the impact of any enforcement measure. Jailing a parent for contempt or directing enforcement by arranging for the removal of the child by an officer of the court for the forcible administration of the immunisation has yet to be sanctioned by the courts because of their impact on the child's welfare.
Conclusion
The history of compulsory immunisation in the UK would make a decision by any government to reintroduce mandated vaccination a bold policy move. Although not ruled out, the Health Secretary hopes that other options can be used to increase immunisation uptake to population immunity levels.
Resorting to litigation has also largely been ineffective. The approach of the court is not an unquestioning hand-on-heart recommendation of immunisation but a careful consideration of each case on its facts. Immunisation may not be appropriate in every case. The court views immunisation as a voluntary process that both parents are entitled to be consulted on. It is only in cases where it is hotly disputed between parents that courts become involved. Even where a court order is given it is no guarantee that the vaccine will be administered.