Child vaccination disputes

In the context of a global pandemic, questions surrounding vaccination of children have never been more pressing or more prone to inspire controversy. In many countries, covid-19 vaccines have already been approved for children as young as five. In the UK, vaccination is recommended for all children aged 12 years and older and for children aged 5-11 at serious risk from the complications of covid-19, or who live with family members who are immunosuppressed.

Recent data continues to suggest vaccines already deployed are safe and effective for children, as for the population as a whole. With the Pfizer BioNTech vaccine having been approved for use in children aged 5-11 by the MHRA, the question of universal child vaccination remains an area where policy is likely to continue to develop, and where potential for disputes arising between parents is likely to become more prominent.

What happens if parents disagree?

Where parental responsibility (PR) is shared, the conventional approach suggests the consent of both parents is required for a vaccine to be administered. Where agreement cannot be reached, the question of vaccination would need to be approved by a court, following an application for a specific issue order under s 8(1) Children Act 1989 (CA 1989).

For parents with older children, it may not fall to them to make vaccination decisions at all. Children over the age of 16 are presumed to be capable of consenting, or not, in their own right but it is also the case the views of younger children who are able to fully understand the proposed procedure (so-called Gillick competence) will be determinative.

How could a divorce agreement accommodate for these issues?

On separation, many parents seek to agree a parenting plan, often dealing with matter such as how children split time between parents, but also setting out agreed positions regarding matters such as vaccination. While not legally binding, such plans may be given weight as showing the joint intentions of the parties, if an application came before a court.

Ultimately, however, a Family Court is required to make decisions in the best interests of the child, or children, whose welfare they are considering. The fact a parent has changed their mind, or seeks to depart from a previous agreement, on vaccination or any other issue, would not preclude a court from finding in their favour if their revised position was in the best interests of the child.

Is there a legal precedent for child vaccination disputes?

The approach of requiring two parents’ consent for the authorisation of vaccination without a court order can be traced back to the judgment of Thorp LJ in the CoA, in Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148. This approach has been applied consistently in the Family Court, including in the recent decision of MacDonald J in M v H (Private Law Vaccination) [2020] EWFC 93.

In a recent CoA decision on child vaccination in local authority care – where the legal framework is different, with the LA being capable of overriding the PR of parents – a question was raised as to whether the time had come to reconsider the need for two parent consent, in light of the development of scientific understanding since the MMR controversy in the late 1990s and early 2000s.