Will My Child Receive The Covid Vaccination If My Ex-Partner Objects?

What is the current guidance on covid vaccinations for children?

In June 2021, the Pfizer BioNTech vaccine was approved for use in children aged 12 and over. At the time, the Joint Committee on Vaccination and Immunization (JCVI) recommended that children aged 12 and over should receive the vaccine if (i) they are at higher risk of severe COVID-19 infection due to certain underlying health conditions or (ii) they share living accommodation with immunosuppressed individuals. On 4^th August 2021 the JCVI updated their guidance to offer a first dose of the vaccine to all 16 and 17 year olds in the UK. The vaccine is not currently recommended for other children, but this position may change as further trials are undertaken and greater safety and efficacy data emerges. 

Who decides if a child is vaccinated?

Children aged 16 or 17 will not need parental consent.

In respect of younger children, decisions over vaccinations fall within the exercise of parental responsibility. Parental responsibility is a legal concept which refers to the authority to make key decisions relating to the welfare and upbringing of a child. A mother automatically has parental responsibility for their child. A father will automatically have parental responsibility for their child if they were married to the mother at the time of the child’s birth or if they are named on the child’s birth certificate. If parents cannot agree on an issue such as whether their child should be vaccinated, they must seek the determination of the court. The parent in favour of vaccination can apply for a Specific Issue Order under section 8 of the Children Act 1989.

What is the court’s approach to vaccinations?

When a court determines any question in relation to a child’s upbringing, the Children Act 1989 mandates that the child’s welfare must be the court’s “paramount consideration”. The Court will seek to determine what is in a child’s best interests by reference to the so-called “welfare checklist”. This is a list of factors set out in statute which includes “any harm which the child has suffered or is at risk of suffering” and “his age, sex, background and any characteristics of his which the court considers relevant”.

Given that the covid vaccine has only recently been approved for children over 12, reported court decisions on this specific issue are scarce. However, guidance can be found in reported cases relating to other vaccinations.

The Court of Appeal considered the issue of vaccinations in In re H (A Child) [2020] EWCA Civ 664. That case concerned a 9 month old baby who was under the care of the Local Authority, but had not received the vaccinations routinely administered to babies in accordance with Public Health England’s guidance because of objections from its parents. The Court was asked to determine whether the Local Authority had lawful authority to consent to the child’s vaccination by virtue of the care order in place notwithstanding the objections of his parents. Importantly, in reaching his conclusion that such authority existed, the Judge stated as follows:

“Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contraindication in an individual case”.

What has the court said about the covid vaccine?

The Court of Appeal’s approach in Re H was followed in M v H (Private Law Vaccination) [2020] EWFC 93. In M v H, the applicant father was granted a specific issue order that his two children (aged six and four) be vaccinated in accordance with the NHS vaccination schedule despite the mother’s objections and concerns over the efficacy of the vaccines. At the time of the judgment (December 2020) the covid vaccine had not been approved for use in children. The Judge stated as follows:

“I am also not prepared at this hearing to make a specific issue order with respect to the vaccination of the children against the coronavirus responsible for causing the COVID-19 infection. I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.

As I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below 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. However, given a degree of uncertainty that remains as to the precise position of children with respect to one or more of the COVID-19 vaccines consequent upon the dispute in this case having arisen at a point very early in the COVID-19 vaccination programme, I am satisfied it would be premature to determine the dispute that has arisen in this case regarding that vaccine.”

This passage indicates that in future the court is likely to follow the developing guidance of the JCVI in relation to the covid vaccination of children. If a child has an underlying health condition which puts them at higher risk from covid-19, then in the absence of strong evidence of adverse consequences unique to that particular child, the court is likely to follow the recommendation that they are vaccinated. The court’s decision in cases where a child is caught by the JCVI’s recommendation because they live with an immunosuppressed individual may be more finely balanced. This is because the court must focus on what is in the child’s best interests, not what is in the best interests of the individual they live with.

It is instructive to consider the handful of reported cases where the Court of Protection has been asked to determine whether an adult in a care home who lacks capacity should be given the covid vaccine despite opposition from their family members. In almost all cases, the court has found it to be in the individual’s best interests for them to receive the covid vaccine. The anomaly is SS v Richmond upon Thames LBC [2021] 4 WLUK 407. In that case, the Judge concluded that an 85 year old dementia patient should not be vaccinated largely because administering the vaccine would likely involve a degree of restraint or sedation by her carers which would be distressing and compromise the trust she placed in them.

What if children say they don’t want the covid vaccine?

 The children’s discernable wishes and feelings is one of the factors that the court must have regard to as part of the welfare checklist. However, the weight attached to a child’s views will depend upon their age and maturity.

In F v F (MMR Vaccine) [2013] EWHC 2683, the court granted a father’s application for his daughters aged 11 and 15 to receive the MMR vaccination against their wishes. The Judge found that the children’s views lacked maturity and were likely influenced by their mother’s views. The Judge stated as follows: “Obviously in reaching this decision I am aware this is against the girls’ wishes, but that it not the only factor. It is of course an important factor, particularly bearing in mind their ages but the court also has to consider their level of understanding of the issues involved and what factors have influenced their views. In this case I do not consider there is a balanced level of understanding by them of the issues involved, the focus has been on the negative aspects in a somewhat unfocussed way.”

If you have an questions on the issues raised in this article, please contact FLiP associate Grace Lawrence at gml@flip.co.uk.