Covid-19 vaccinations for children: who decides?

On 13 September 2021, chief medical officer for England, Professor Chris Whitty, confirmed 12 to 15-year-old children, who do not have underlying health conditions, would be offered a single dose of the covid-19 Pfizer-BioNTech vaccination. This decision came despite the joint committee on vaccination and immunisation (JCVI) deciding not to recommend mass vaccinations to this age groued.

Vaccinating children can be polarising among families, within relationships, between separated couples and between parent and child. The debate includes the educational and societal benefits of vaccinating this age group, such as the need for schools to remain open and to protect more vulnerable members of society.

Evidence indicates the health benefits of the vaccination are small for 12 to 15-year-olds without underlying health conditions compared to the risks posed. The JCVI reported the potential risks from vaccination are also small, with reports of post-vaccination myocarditis being rare. In addition, it says the UK population places a higher emphasis on the safety of vaccination programmes in children, than on the benefits. 

The delayed decision on whether to give this age group a second dose is no doubt fuelling confusion. With medical research and trials taking place in more than one country, there is confusion over what information to trust to help parents decide what is right for their children. Some questions being asked are:

·       which vaccine has been tested for long enough to give parents the reassurance it is safe?

·       why should children be immunised at all when it is not them who appear to suffer the effects of covid-19?

·       do the wider societal benefits outweigh the marginal health benefits?

It is no wonder there is confusion for parents about what to do, particularly with the press reporting children can be vaccinated without parental consent should they chose to. The conversation about the vaccination programme for children is complex, so what is the legal position on vaccinations in this age group?

Pre-covid: the court’s approach

Whether a child should be vaccinated is primarily a decision for those with parental responsibility. When those individuals cannot agree, one may apply to court for a specific issue order that the child should receive the vaccine or a prohibited steps order to stop it.

The law on childhood immunisations pre-covid is established. Every childhood vaccination has now been rigorously tested and longitudinal studies have demonstrated they are safe. Unless there are case-specific circumstances, the courts will sanction immunisation where the issue is disputed between parents and/or as between local authority and a parent.

Pre-Covid, in the Case of Re H (a child, parental responsibility, vaccinations), the Court of Appeal clarified its position with respect to vaccinations in Children Act cases. Re H was a public law case where care and placement orders had been made in respect of a child but where the parents had objected to the child receiving routine childhood vaccinations.

The local authority applied to the High Court for permission to have the child vaccinated. The judgment made clear that medical evidence had established vaccinations were generally in the best interests of otherwise healthy children.

It held that the body of science in favour of a child being vaccinated was so strong, an application to prevent “the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.”

Re H appeared to mark the end of the road, until now. Covid-19 inevitably re-opened the arena and parents who do not agree on whether their child should be vaccinated will soon be before the courts again. 

Decision-making

For some parents, the answer will be easy – they will vaccinate. For others, the decision will be complex. For two parents who agree they do not wish to vaccinate then, as the law currently stands, this is unlikely to be challenged, which raises the question of the fairness of the court intervening when parents disagree.

Consideration must also be given to what happens if a child does not agree with their parents’ decision. Although not regarded as adults, children over the age of 16 are entitled to make the decision about what treatment they receive. Children under the age of 16 do not have the automatic right to give consent/refuse consent to medical treatment, but if they are considered to be Gillick competent, the child’s opinion can override that of the parents. 

When considering whether a child is Gillick competent a healthcare professional will consider familiar concepts regarding the child’s age, maturity and their understanding of the decision they wish to make including any risks that may arise because of their decision. However, it is unlikely families and the NHS have had to grapple with this on the scale that may now be required where 12 to 15-year-olds are to be offered a single-dose vaccine.

Courts and the covid-19 vaccine

When considering the court’s potential approach to covid-19 vaccines, it may not be accurate to compare past approaches. Children Act cases are built around a child’s best interests being the paramount consideration. There is a vast body of science supporting arguments that childhood immunisations, in most cases, are indeed in a child’s best interests.

When we look at the comparatively lesser extent to which children are affected by coronavirus, it is difficult to support a claim that it is in their best interests to have this vaccine. Arguably, it is in the public interest to limit the spread of covid-19 through children and its impact. In such cases, the public interest is not the court’s paramount consideration.

Following the outbreak of smallpox in 1853, compulsory vaccinations for children were enforced by the Vaccination Act. This stopped in 1948. While it is unlikely the government will reverse the position it has adopted since then by making a covid-19 vaccine compulsory, it is likely there will be significant restrictions placed upon those who choose not to have the vaccine, for example travel and event restrictions. Living under such restrictions may not be in a child’s best interests.

In the absence of such restrictions, more creative arguments may need to be adopted when arguing a child should receive the vaccine. It could be argued it is not in a child’s best interests for them to potentially infect older relatives or for them to spread the virus within their community.

With new strains of the virus emerging, it is feasible the vaccine may not be a one-off for lifetime immunity and instead be akin to the flu jab being issued annually. This will impact the courts approach and the need to consider whether to give blanket orders (i.e. one order for all strains of the vaccine) or to revisit the decision annually. With courts at capacity, one must question whether the latter approach is feasible?

In the judgment of M v H (Private Law: Vaccination) [2020] EWFC 93, Mr Justice MacDonald made some obiter comments regarding the vaccine. He made it clear it was too premature to make any specific issue order regarding vaccination for covid-19, but this should not be taken to be an indication that the court considered the vaccine unsafe or not in the children’s best interests.

He stated: “it is very difficult to foresee a situation in which a vaccination against covid-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the covid-19 vaccines or a well evidenced contraindication specific to that subject child.”

This case does not provide a definitive answer but is a helpful encapsulation of the key issues and the guidance provided by authorities.

Kate Elliott is a director, solicitor and mediator with Family Law Partners familylawpartners.co.uk. Emily James is a barrister at 36 Group 36group.co.uk