Vaccination season is upon us. As parents we have all received those letters from school about vaccinations and asked the question “should they have them?” The question is even more difficult to answer when parents have different views in respect of vaccinations.
It goes without saying that parental consent and talking to the child(ren) is standard for the provision of any vaccine but what happens when one parent is “anti-vax”?
Following the roll-out of the Covid-19 vaccines for 12 year old children and above, the issue has become more immediate where both parents are unable to agree whether their child(ren) should have them.
It is even more pressing now that the Government has approved second doses of the Covid-19 vaccine for children aged 12 and above.
So, what happens if one parent consents and the other doesn’t?
If agreement cannot be reached, and after taking into consideration what the child wants, an application can be made to Court for a Specific Issue Order pursuant to s.8 Children Act 1989. Hopefully this is the last resort but what would the Court decide?
The Court’s Approach
The issues were considered by the Court in the case of Re H (A Child) (Parental Responsibility – Vaccination) where the mother had signed a vaccine refusal declaration and sent it to the school.
The Father then subsequently made an application to the Court. The application considered the MMR vaccination but the Court also considered the same should apply to all NHS vaccinations.
The mother had been concerned that there was no evidence as to whether the Covid-19 vaccine was effective and also raised concern as to adverse effects. The same concerns were raised as to the winter flu vaccine.
The UK Health Security Agency guidance was that the vaccine would provide young people with good protection against the illness and should also help reduce the need for young people to have time off of school and reduce the spread of Covid in schools.
The Judge declined to consider the merits of the Covid and winter flu vaccines due to the fact that both vaccines are approved by the Government and supported through scientific research. Both vaccinations are subject to national programmes.
The Judge commented that there needed to be an allowance for the possibility that there may be real factors in an individual child’s situation that could be sufficient reason why they should not be vaccinated. Further, the Judge commented that the Court would need to consider whether the child was legally competent to make the decision to be vaccinated.
The Judge in that case held that in the absence of any factors of substance that might realistically call into question whether the vaccinations are in an individual child’s best interests, decisions for the child to undergo standard vaccinations that are part of national vaccination programmes are not to be regarded as grave decisions having profound or enduring consequences for the child.
The Court considered the above in relation to Covid-19 and the winter flu vaccine in Re C (Looked After Child) (Covid-19 Vaccination) (2021) which resulted in the same conclusion.
The Mother in that case also argued that it was against her Article 6 and Article 8 Human Rights. The Court disagreed noting that the Court must strike a balance between the rights of a child and the interests of the community.
So what does this mean?
In short this means that the Court is likely to follow Government and scientific advice in relation to vaccines.
There are however, individual cases whereby an underlying medical issue or perhaps familial adverse reactions in adults would call into question whether or not it is in the best interests of an individual child to be vaccinated.
Further children aged above 12 would be seen as legally competent to make their own decisions surrounding the vaccine. That said, again it depends upon the individual child and their own circumstances and any specific difficulties they may have.
For the average child with no underlying conditions, it is likely that the Court would rule in favour of the vaccine.
