Does my child have to be vaccinated for COVID-19?

Kendra McKinney, who is a Family Law Partner at BLM, looks at recent Family Court decisions on childhood vaccination.

One of the reasons why discussions over vaccinating has become so contentious is because it strikes at the heart of an issue parents feel strongly about – what is in their child’s best interests?

When more than one person holds parental responsibility for a child and those with parental responsibility cannot agree on if the child should receive a vaccine or not then the courts intervention and adjudication can be sought.

Routine childhood vaccinations

In the case of, Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 on the issue of routine childhood vaccinations, Lady Justice King delivering the lead judgment from the Court of Appeal stated:

“It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guideline, but there is at present no legal requirement for a child to be vaccinated.

“Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated.

“Available evidence supports the Public Health England advice that vaccinations are in the best interests of children and society as a whole.
“The evidence with respect to MMR vaccinations overwhelmingly identifies the benefits to children.

“Subject to any credible development in medical science or peer reviewed research to the opposite effect (along with the instruction of a jointly instructed expert), the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects.”

This specific case was regarding a child that was in the care of the local authority. The local authority wanted the child to be vaccinated with routine childhood immunisations and the parents of the children opposed this. The child was in the local authorities care and subject to a Section 33 Care Order, the local authority and the parents all held parental responsibility for the children; however the local authority held elevated decision making powers. In this circumstance the court clarified that:

“Whilst parental views must always be taken into account, the matter is not to be determined by the strength of the parental views unless the view has a real bearing on the child’s welfare.

“…the local authority could have used its statutory power to consent to [the child] receiving routine immunisations at the appropriate times without the need to seek court approval. Consequently, “under s.33(3)(b) CA 1989 a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.”

The case should not be read as a blanket permission for local authorities to exercise their Section 33 powers in this way and there should be an individual analysis of each case.

A parent could make an application to invoke the inherent jurisdiction and seek an injunction in respect of proposed vaccinations, however “an application to invoke the inherent jurisdiction or to seek an injunction with a view to preventing 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.”

This case has essentially reversed the presumed burden from that of the local authority to the parent/s when this type of dispute arises.

Private law disputes and COVID-19

In relation to private law disputes between parents, when local authorities are not involved, the court commented, whilst strictly obiter, “it would be difficult to foresee a case in which a vaccination approved for use in children, including vaccinations against COVID-19, would not be endorsed as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence questioning the safety and/or efficacy of the vaccination or a well evidenced contraindication specific to the child in question.”

One such recent private law case decision that followed is that of M v H (Private Law Vaccination) [2020] EWFC 93 where Mr Justice McDonald analysed the case law on parental responsibility and concluded that it remained necessary for the court to make decisions where parents with parental responsibility could not agree on vaccination.

Having considered that it was necessary to make decisions on these matters, the court granted a specific issue order authorising the administration of vaccinations to two children, ages six and four, in accordance with the NHS vaccination schedule. MacDonald J reiterated, as in the case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 that whilst it is both reasonable and responsible behaviour for a parent to arrange for a child to be vaccinated, vaccinations are not compulsory. He set out that scientific evidence establishes that it is generally in the best interests of otherwise healthy children to be vaccinated and that it was for the public good. He concluded that, while the court will always take the views of parents into account, the weight that the court gave to those views depended not on the vehemence with which those views were expressed, but on their substance.

The Judge declined to decide on if the children should be vaccinated for COVID-19 because it was as yet unclear as to what recommendations would be given about the vaccination of children (ie when and which vaccine) and so any decision was premature. He nevertheless wanted it to be “abundantly clear” that his decision to defer this decision “does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine… 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.”

Applying the case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 (above) MacDonald J reiterated that absent special circumstances and peer-reviewed evidence it will be very difficult for a parent to successfully object to vaccination in accordance with the public health recommendations.

Although every case will be determined by its facts, the Family Court is setting a strong precedent; that if it is asked to consider whether a child should be vaccinated, in the absence of reliable medical evidence to cast doubt on the safety and efficacy of the vaccination, they will make an order for the child to be vaccinated.