Despite the success of the Covid-19 vaccination programme in the UK and the clear evidence that it has prevented thousands of adults becoming seriously ill with Covid-19, some adults still feel that it is a difficult decision to make when considering whether to be vaccinated. Of course, as adults we have the freedom and choice to make these decisions ourselves. However, in a situation where both parents disagree as to whether to vaccinate their child, it then becomes a lot more difficult.
Current vaccination guidance from the Joint Committee on Vaccination and Immunisation recommends that every child over the age of 12 and some children, aged 5-11, are vaccinated with 2 doses of the Covid-vaccine. Whilst scientific evidence demonstrates the safety of the Covid-19 vaccines, some people, including parents, continue to, for their own reasons, oppose the Covid-19 vaccines. For parents in particular, this can potentially lead to arguments and difficulties. If you are currently in disagreement about whether your child should receive the Covid-19 vaccine, you may wonder what does the law state?
In order for a person to make a significant decision in respect of a child (to include whether or not to vaccinate), they must have Parental Responsibility for the child in question. Parental Responsibility is a legal status in a child’s life, acquired in different circumstances and is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” (S3, Children Act 1989)
A birth mother will automatically be deemed to have Parental Responsibility for her child. For fathers, the situation is slightly different. By way of example, if the father is named on the child’s birth certificate or is married / in a civil partnership with the mother at the time the child was born, he will also have parental responsibility for the child. There are other circumstances in which an individual can acquire Parental Responsibility which include via parental responsibility agreement with the mother, a Court Order, and the civil partner or wife of a woman who conceived a child through artificial insemination after 6th April 2009.
Where more than one person has Parental Responsibility for a child, they are not legally able to act alone and without the others. This can cause an issue if one parent believes it to be in the child’s best interests to have the vaccine, whilst the other does not. In these circumstances, the vaccine cannot be administered without the consent of both parents.
What happens if both parents have Parental Responsibility and disagree over the Covid-19 vaccine for their child?
In the first instance, both parents would be strongly encouraged and expected to attempt to reach an agreement that is in the best interests of the child. This can be via direct discussions, communications via solicitors and/or mediation. However, if they are unable to agree, ultimately an application would need to be made to the Court for either a Specific Issue Order or a Prohibited Steps Order.
What is a Specific Issue Order?
With a Specific Issue Order, a parent (or another person with parental responsibility) can apply to the Court to make an Order that determines a specific question / issue in relation to
the child. For example, whether the child should receive the Covid-19 vaccine. If successful, the parent applying for this Order can proceed with vaccinating the child, despite opposition from any other person with Parental Responsibility. A copy of the Order can be produced to the relevant medical authority. In making its decision, the Court will consider the best interests of the child and will have regard to the welfare of the child in question. Based on recent case law (explained below), it is highly likely that the Court would determine that administering the Covid-19 vaccine is in the child’s best interests, although each individual case will turn to its own facts.
What is a Prohibited Steps Order?
With a Prohibited Steps Order (PSO), a parent can apply to the Court to prevent the other parent from making a particular decision in respect of the child. For example, to prevent one parent from allowing the child to receive the Covid-19 vaccine. Although it should be noted that a PSO is unlikely needed in these circumstances as it would be unlawful for one parent to act alone where there is more than one person with Parental Responsibility for a child. If you have concerns about another parent acting unilaterally, steps should be immediately taken to place the child’s school and GP surgery on notice of your objections and withheld consent. Steps should then be taken to make an application to Court. In making its decision, as with a Specific Issue Order, the Court will consider the best interests and welfare of the child/children in question.
Recent Case Law
M v H (private law vaccination) [2020] EWFC 93
In this case, the parents disagreed as to whether their two children (P & T, aged 4 & 6) should receive vaccines under the NHS vaccination schedule (e.g. MMR vaccine). The father wished for his children to receive the vaccines and therefore applied for a Specific Issue Order. The mother strongly disagreed. The father also attempted to include vaccinations in relation to Covid-19.
The Judge granted a Specific Issue Order which directed that the children should receive the vaccines under the NHS vaccination schedule, as it was “in the best interests of both P and T.” (Judgment – Paragraph 42) The Judge did not make a decision in respect of the Covid-19 vaccine but commented that it is “very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19 would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccine or a well evidenced contraindication specific to that subject child.” (Judgment – Paragraph 52)
C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)
In this case, the first of its kind, the 12-year-old child was cared for by the local authority under a care order and wanted to receive both the winter flu and Covid-19 vaccinations. Whilst the local authority and the child’s father supported the child’s wishes, the mother strongly objected, and the local authority therefore had to issue court proceedings.
In his judgment, the Judge held that the local authority could arrange and allow for the child to be vaccinated, despite the mother’s objections. The judge was also reluctant to consider the merits of the Covid-19 vaccination programme. “I do not consider it appropriate for this court to embark on an investigation into the merits of any competing theses as to whether national programmes of vaccination of 12-15 year olds for Covid-19 or for children in school years 7-11 for the flu virus, are justified as being generally in the best interests of children in those age ranges.” (Judgment – Paragraph 19) The Judge also commented in relation to children that are Gillick competent and held that, “the view of a Gillick competent, looked after child of C’s age deserves due respect when considering any question of their best interests.” (Judgment – Paragraph 22)
The above case law therefore highlights that the Court is highly likely to rule in favour of a child receiving the Covid-19 vaccine, or indeed any other medically approved vaccine under an NHS vaccination programme. However, it is important to consider each case individually as there could be factors that would sway the Court’s decision e.g. any other relevant medical conditions from which a child might suffer or perhaps allergies to any specific component of the intended vaccine.
If you require any assistance in relation to a parental dispute regarding childhood vaccination or require any other family-related advice and assistance, please contact either Cassie Greville or Nia Thomas for a free 30-minute consultation.
