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Parenting decisions: vaccinations

We answer key questions for parents as the Pfizer vaccination is rolled out to children as young as 12 if they are thought to be at high risk.

This week, the BBC has reported that an estimated 370,000 children will be eligible for the vaccination.

As a parent, and as with any vaccination programme, you will have an important decision to make if the vaccination is offered to your child.

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. In most cases parents are able to agree on what treatment is appropriate for their child. 

Sometimes parents are unable to agree as to the appropriate way forward. In such circumstances, generally the law only requires doctors to obtain consent from one parent in order to lawfully proceed with treatment. In practice however, where parents are opposed 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, 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. 

Hence, 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 or not the child should be vaccinated will then rest with the Judge hearing the case. When determining the issue the child’s welfare will be the paramount concern and the court will give consideration to the welfare checklist set out in section 1 of the Act.

Can the child 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, were 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. Mrs. Justice Theis did however very much suspect 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 applications, 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 therefore have a difficult task ahead of them.

More recently 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. MacDonald J also went one step further and widened his order so that it would include not only the MMR vaccination but all childhood vaccinations currently included in the NHS vaccination schedule. 

It was also stated (obiter) that, provided the COVID-19 vaccination is approved for use in children, the court is likely to consider such a vaccination to be in the child’s best interests.

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.

This article was originally published in June 2021 but was updated in July 2021 to reflect the latest developments.

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

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