Child vaccination disputes

Chris Barnes reflects upon the controversies of choice and consent in childhood vaccination

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.

Best practice for family lawyers and practitioners

When instructed in a case where vaccination is, or may be, an issue, understanding the case law is critical. Most, if not all, of the commonly administered vaccines will have been subject to consideration in previous cases. The general starting point for Family Court Judges is now the administration of approved and recommended vaccines will be in the best interest of an individual child, unless there is a specific contra-indication, though each case will fall to be considered individually. The exception will, of course, be for a child who refuses to be vaccinated and is judged to be competent to make that decision.

For a family lawyer taking on a vaccination case, an understanding of the nature of the dispute, whether the dispute relates to a specific vaccine or vaccination in general, the age of the child, their potential competence, and any wishes they have expressed, will be critical information. Whilst mediation or negotiation may be appropriate, the question of vaccination is frequently one where positions can be polarised and very strongly held and recourse to the court is often necessary.

In the future, the question of whether vaccination should remain one of a small cohort of decisions where two parent consent is required is likely to come before the court – and with covid-19, it may be an issue which falls to be determined sooner rather than later.

Chris Barnes is a specialist Family Law barrister at 4PB: 4pb.com/barrister-profile/chris-barnes