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Parenting decisions: vaccinations – what is the court’s likely position?

We answer key questions for parents as vaccinations continue to be rolled out to children as young as 12.

Earlier this month it was reported that more than a million children in UK between the ages of 12–15 years have received a COVID-19 vaccination.

COVID-19 and flu vaccines are both part of the UK’s national programme of vaccination for children and are recommended by the UK Health Security Agency Guidance.

Recently decided case in support of flu and Covid-19 vaccinations

A recently reported case, Re C (Looked after child) (COVID-19 vaccination) [2021] EWHC 2993 (Fam), confirmed that a local authority with a care order for a child can arrange for the child to receive vaccinations for COVID-19 and flu, despite parental opposition. The court held that, as both vaccines are part of the national programmes of vaccination for children, they should be regarded as being in the best interests of the child.

This case concerned a child in care. The legal position between a local authority and the child’s parents is different to that between two parents with parental responsibility. The local authority can override the parents' wishes, whereas parental responsibility between parents is equal. As such, any disagreement between parents over vaccinations should be resolved through an application to the court for a specific issue order as we explain below.

What happens if the parents of the child are unable to agree whether their child should receive a vaccine?

Assuming both parents have parental responsibility for the child, they will both have the right to consent to medical treatment on his or her behalf, provided the treatment is deemed to be in the best interests of the child. 

If parents are unable to agree the appropriate way forward, the law only requires doctors to obtain consent from one parent to lawfully proceed with treatment.

In practice however, where parents have opposing views and one parent adopts an entrenched position, the clinician will often be reluctant to override that particular parent’s strongly held views.  

The “Green Book”, which provides guidance for health professionals, states that if only one parent agrees to immunisation, such immunisation should not be carried out unless a consensus can be reached or there is specific court approval that immunisation is in the best interests of the child. This approach was ratified by King LJ in the recent case of Re H (A Child) (Parental Responsibility: Vaccination) (2020) EWCA Civ 664. 

Where one parent is not in favour of their child being vaccinated, attempts will be made by the clinician to facilitate an agreement but, if this fails, it will be open to either parent to apply to the family court for a specific issue order under section 8 of the Children Act 1989 (“the Act”). 

The decision as to whether the child should be vaccinated will then rest with the judge hearing the case. When determining the case, the child’s welfare will be the paramount concern and the court will consider the welfare checklist set out in section 1 of the Act.

Can children consent to medical treatment themselves?

As children grow and mature their ability to make decisions on their own behalf increases.  This can lead to a difference of opinion between the child and the parents as to what is in their best interests. Where the parents and the child disagree, doctors can find themselves in a very difficult position.

Whilst in England and Wales no statute governs the rights of people under 16 to consent to medical treatment, in the landmark case of Gillick v West Norfolk & Wisbech Area Health Authority and Department of Health & Social Security (1985), it was held that a young person under 16 can consent to medical treatment provided he or she is competent to understand the nature, purpose and consequences of the treatment proposed.

However, where a child able to clearly express their wishes and feelings, the court continues to have the final say. In the case of F v F [2013] EWHC 2683 two siblings indicated that they did not wish to receive the MMR vaccine after their parents failed to reach an agreement on the issue. Ultimately, Mrs Justice Theis dismissed the wishes and feelings of the children and concluded that it was in their interests to receive the vaccine. The court suspected that the children had been influenced by their mother and, as a consequence, the wishes and feelings they expressed were not their own.

What if both parents are opposed to their child receiving a vaccine?

There are limits placed on how parents can exercise their parental responsibility. If, for example, they refuse to consent to treatment which is in the child’s best interests, doctors can seek guidance from the courts.

If I do not want my child to be vaccinated and make a court application, am I likely to be successful?

Case law suggests that in the vast majority of cases the courts will determine vaccinations to be in the best interests of the child. Any parent seeking to object to their child being vaccinated will have a difficult task ahead of them.

In the case of M v H (Private law vaccination) [2020] EWFC 93 a father brought an application for a specific issue order after the mother objected to the parties’ children receiving the MMR vaccination. MacDonald J found in favour of the father and granted his application. The court went one step further and widened the order to include not only the MMR vaccination but all childhood vaccinations currently included in the NHS vaccination schedule. 

MacDonald J also confirmed (obiter) that the court is likely to consider a Covid-19 vaccination to be in the child’s best interests.

In the light of the decision in Re C, it is anticipated that in the majority of cases the court will support the national vaccination programme.

Summary

If a dispute arises in relation to medical treatment and what is in the best interest of a child, it is advisable to seek independent legal advice at an early stage.

For further guidance on a dispute involving children, please contact our specialist child law solicitors.

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