As of April 2022, children aged five to 11 are to be offered the Covid-19 vaccine. We consider the effect this may have on parents with differing views about vaccinations. Lydia Fowler examines the recent case law in relation to regulated vaccines and how the court’s approach might affect parents tackling this debate.

Whilst some parents will welcome vaccinations for children aged five to 11 in the hope that fewer children catch the virus, school absences will reduce and it will lessen the strain of home-schooling, many parents may disagree about whether their child should receive the vaccine. This discussion can be compounded when parents are separated or involved in court proceedings regarding their children.

What is the law?

The debate about whether a child should or should not receive a vaccine has been long-standing. The issue has recently come back into the spotlight in response to the Covid-19 vaccine being made available to children.

The starting position in England and Wales is that receiving a vaccine, despite often being encouraged, is not compulsory for adults or children. The decision lies with the individual, and adults up and down the country have exercised their rights as they wished. That decision becomes more complicated when it comes to children, especially younger children who cannot necessarily express a decision themselves. In cases concerning children, which in the context of the Children Act 1989 means a person under the age of 18, the parents or persons with parental responsibility decide on behalf of their child.

As with any decision being determined by two counterparts, having a choice can lead to disagreement, which becomes more pertinent when the decision revolves around a child’s health and wellbeing.

What can the court do?

Where parents disagree about whether their child should receive a vaccine, they can apply to court to determine the outcome as a standalone issue.

The court will encourage parents to try and reach a consensual agreement without the need for judicial input, often in the form of mediation. If an agreement cannot be reached, either party can make a specific issue application to determine the dispute under section 8 of the Children Act 1989.

What will the court do?

In any application regarding children, the child’s welfare will be the court’s paramount consideration, and the court must have regard to the overarching ‘welfare checklist’. The welfare checklist sets out clear guidance for the court on what they must consider in their decision-making. For the issues discussed in this article, these are a child’s needs, age, sex, background, and the risk of the child suffering harm.

Case law in this area was established before the pandemic. In 2020, the court was asked to intervene in relation to vaccinations in two key cases.

The first case was Re H (A Child: Parental Responsibility: Vaccinations) [2020] EWCA Civ 664, which concerned a 10-month old child in the care of the local authority. The local authority wanted to vaccinate the child against the wishes of both parents, particularly the father. While the case concerned one child, it considered the more general role of local authorities and their ability to consent to the administration of routine vaccinations for children in their care.

The Court of Appeal determined that the local authority could consent to a child receiving a vaccination under the UK public health programme, notwithstanding the objection of the child’s parents. The court acknowledged that a parent’s view should be considered when making any decision about vaccinations, but the local authority should make a decision based on what was in the child’s best interest. Where a parent objected to the vaccination, they would be unlikely to succeed in any application unless they could present cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of the routine vaccinations.

The second case of M v H and P and T [2020] EWFC 93 was a private children case brought by the children’s father. Again, the issue was whether the children should be allowed to receive routine vaccinations under the UK public health program (ie the MMR vaccine). The mother, who was against the children (aged six and four) being vaccinated, sought to rely on information gathered online from sources in the US to defend her position and based her objection on UK medicine lagging behind the latest science.

The court did not accept her arguments and ruled against the mother to determine that the usual NHS vaccines were in the children’s best interest. The timing of this case was interesting as it was heard nine months into the pandemic and seven days after the first Covid-19 vaccine was administered in the UK. Just before the hearing, the father sought to widen his application to cover any Covid-19 vaccine. The judge was not prepared, at that time, to make a specific issue order with respect to the vaccination of the children against the coronavirus. He was, however, clear that his decision did not signal any doubt about the vaccine. He said if the vaccine were approved for administration to children, it would be difficult to see why the court would not endorse it as being in a child’s best interest.

Almost one year after the decision in M v H and P and T, the court was asked to deal with the Covid-19 vaccine in the case of C (Looked After Child) (Covid-19 vaccination) [2021] EWHC 2993 (Fam). Despite being approved under the same NHS scheme as other commonplace NHS vaccines, due to the speed at which the coronavirus vaccines were rolled out and the media attention surrounding the vaccines, the issue came before the court as many parents were understandably concerned about the vaccine’s long term effects.

This case was the first reported case concerning the vaccine, and the court did not alter its position. As Covid-19 vaccinations were now part of the NHS programme, the court was satisfied (without the benefit of expert evidence) that the decision to include them would be based on evidence that they were in the best interest of the children who benefit from that programme, even if they may not be entirely free from risk.

When considering the overarching welfare checklist, the court must have regard to the child’s wishes and feelings, although it is not obliged to follow them. In this case, given the child was 12 years old (almost 13), the court gave some weight to the child’s wishes and feelings which were in favour of the vaccine. While the court will consider a child’s wishes and feelings in family law, it is a sliding scale. The wishes and feelings of a child who is five will inevitably bear less weight than those of a child who is 13. In the five to 11 age bracket, this is less of a consideration, but it is something parents should consider when discussing the vaccine.

Conclusion

Any parent considering making an application of this nature should consider carefully the grounds and evidence upon which they intend to rely. The above cases show that the court is willing to go against the wishes and feelings of a parent in favour of administering an approved vaccine.

As with all children proceedings, the court will always seek to act in the child’s best interest. Consequently, whether controversial or not, the starting position will be that absent strong and credible medical evidence to suggest that a vaccine approved by the UK public health service would not be in a child’s best interest, the court is likely to favour the vaccine.

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