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Covid-19 Vaccinations and Children

View profile for Luanne Morton
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With over 18's now able to access their Covid-19 vaccination the issue of vaccinating children has become ever more present, but what happens when parents are unable to agree on whether or not to consent to their child or children receiving the vaccination?

Whilst this specific vaccine has yet to reach the family court arena to be decided upon, simply due to the vaccine roll-out having not yet received the age of those requiring parental consent, we can of course look to previous judgements in respect of the wider issue of vaccinations in order to gauge how the family courts may deal with a Covid-19 vaccination dispute.

Currently, a person with parental responsibility for a child is able to decide whether that child should receive a vaccination. Parental Responsibility is defined within Sections 3(1) Children Act 1989 as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and to his property'. However when more than one person has Parental Responsibility this presents the possibility of conflicting opinions, in this context, whether or not they consider the vaccine to be in the best interests of the child.

If two or more adults have Parental Responsibility for a child and they are unable to agree as to whether a child should be vaccinated, after exhausting all other options, the parties have no option but to place the matter before the court. In order to do this, either party will need to make an application for a Specific Issue Order under Section 8 Children Act 1989. The court will then consider the application by reference to the Section 8 CA criteria and the best interests of the child.

Although not directly in respect of the Covid-19 vaccine, the courts have recently considered the issue of child vaccinations and in the case of Re H (A Child) (Parental Responsibility Vaccination) [2020] EWCA Civ 664 King LJ made the following points:

  • Public Health England advice and guidance unequivocally recommends a range of vaccinations as being in the interests of children and society as a whole;
  • Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated, unless there is a specific contra-indication in an individual case;
  • Neither Counsel (in this particular case) could find a single reported case where a request for vaccination had been refused by the court;
  • Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child's welfare.

Re H was further considered in the recent private law matter of M v H (Private Law Vaccinations) [2020] EWFC 93. In this case the children's father made an application to the court for a Specific Issue Order on the basis that he considered it to be in the best interests of the children to receive all normal childhood, travel and Covid-19 vaccinations.

Although the court in this case declined to deal with the issue of Covid-19 vaccinations, there being no formal guidance available at this time as to whether children should be vaccinated, he did grant the Specific Issue Order permitting the children to receive vaccinations in accordance with the normal NHS childhood vaccinations schedule.

Whilst delivering his judgement, MacDonald J made the following points which we may take as clear guidance in respect of applications relating to vaccinating children:

  1. That where two parents with parental responsibility disagree as to the proper course of action with respect to vaccination, the court becomes the decision maker through the mechanism of a Specific Issue Order;
  2. The concept of PR describes an adult's responsibility to secure the welfare of their child, which is to be for the benefit of the child, not the adult;
  3. In considering whether to grant a Specific Issue Order requiring the vaccination as being in the child's best interests, the child's best interests are the court's paramount consideration…..the court should not make a Specific Issue Order unless doing so would be better for the child than making no order at all;
  4. It was very difficult to foresee a situation in which a vaccination against Covid-19 approved for use in children would not be endorsed by the court as being in the child's best interests, absent of any evidence indicating a specific concern for the efficacy or safety of a particular vaccine or contra-indication specific to a particular child;
  5. Absent special circumstances and peer-reviewed evidence it would be very difficult for a parent to successfully object to vaccination in accordance with the public health recommendations.

It would therefore appear, this whilst an application to for a Specific Issue Order in  respect of the Covid-19 vaccine in children has not yet been tested before the court, if the Public Health England guidance is that the vaccinations should be given to children and in the absence of any contra-indications relating to a specific child the court are likely to grant a Specific Issue Order to permit the vaccination to be given.

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