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The vaccine, the parent and the court – can parents argue against covid-19 vaccinations for their children?

The vaccine, the parent and the court – can parents argue against covid-19 vaccinations for their children?

Indiya Kainth

07/05/2021

As of 27 April 2021, there have been a total of 47,045,391 covid-19 vaccinations given in the UK alone. Children under the age of 18 are a category that has not yet been vaccinated but it is likely that there will be plans to do so in due course.

In this post I discuss the difficulties faced by separated parents who share parental responsibility for their child/ren and disagree on whether their child/ren should be vaccinated against covid-19. I outline what it means to have parental responsibility and how the recent case of M v H could affect parental responsibility rights going forward specifically in regard to arguing against covid-19 vaccinations for children.

Parental responsibility

‘Parental responsibility’ as per Section 3(1) of the Children Act 1989 includes all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property. These rights are afforded to natural mothers by default and to fathers if:

  • the child is born after 1 December 2003 and the father has jointly registered the birth with the mother; or
  • the father is named on the birth certificate.

A father may also obtain parental responsibility where the parents of the child are married, the parents enter a parental responsibility agreement or there is a parental responsibility order in place.

The types of things that parents with parental responsibility can determine are the child’s education, naming the child and consenting to medical treatments including vaccinations.

Problems occur when there are separated parents who share this responsibility but disagree on an issue relating to their child. In these circumstances a parent with parental responsibility can apply to the court for a specific issue order (ie, an order for a specific issue relating to the child where those with parental responsibility are not in agreement) or a prohibited steps order (ie, an order to prohibit a parent from exercising their parental responsibility by prohibiting a certain act relating to the child) under Section 8 of the Children Act 1989. When considering such an application, the court will make an order based on what would be in the child’s best interests.

M v H [2020] EWFC 93

In M v H , the father sought a specific issue order for the subject children to receive routine vaccines for children despite the mothers disagreement with the same. The father then extended this application to cover travel vaccines and any future vaccinations for covid-19.  

When it comes to vaccinations, case law demonstrates that the courts will order that a child is vaccinated in line with NHS and Public Health England guidance as this is within the child’s best interest. As of yet, covid-19 vaccinations do not fall into this category for children. The judge therefore declined to make an order relating to the covid-19 vaccine on the basis that it remains unclear as to what recommendations would be given about the vaccination of children (ie, which vaccine would be most suitable and when it should be administered).

However, the judge did say that: “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…” unless there is “peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of more of the covid-19 vaccines or a well evidenced contraindication specific to that subject child.”

What does this mean?

This means that as of yet, the courts will not make an order to administer a vaccination for covid-19 to a child because vaccinations for children are not advised by the NHS and Public Health England so, currently, it is therefore not in the child’s best interest to do so.

If and when the NHS and Public Health England advise it is safe to do so, the court will deem that a vaccination against covid-19 is in the best interests of the subject child to and therefore will make an order for the same.

The court will default from this position only if there is peer reviewed research evidence indicating significant concerns about the safety or efficacy of the vaccines on children or if there are well evidenced medical reasons as to why the subject child should not receive a vaccine.

Going forward

The question arises as to whether any parent with parental responsibility will successfully argue against a child having the covid-19 vaccine. Parents will have to present medical research evidencing that a vaccine would not be safe for that specific child or peer reviewed research evidence suggesting the vaccine is not safe.

Covid-19 is unlike any other virus in that is new and not fully researched. It remains unknown how any vaccinations may affect children with underlying health conditions in the short and long term. Any research in that regard will require significant time and money. The costs involved to obtain such evidence would be high and potentially enough to prevent a parent from arguing against the vaccine in the first place. This will be especially problematic for parents paying privately for legal representation as expert reports can be priced in the thousands!

We will have to stay tuned to see how this will play out in reality and how any attempt to argue against the vaccination of a child will affect the length and costs of private law proceedings.