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To vaccinate or not to vaccinate; what happens if the parents of a child cannot agree?

As the government continues to roll out and administer the COVID-19 vaccine and with more of the UK population now vaccinated there is a shifting focus on whether children age 12-15 should now also be vaccinated and the associated risks, it is fair to say that vaccinations are currently a hot topic. For many, the vaccination against COVID-19 offers hope for a return to life as we knew it before the pandemic hit.

However, online movements spearheaded by vaccine sceptics (colloquially referred to as "anti-vaxxers") appear to be polarising public opinion on the jab; with research showing that 1 in 3 adults have been exposed to anti-vaccination rhetoric via social media platforms. This online furore is leading to a spike in vaccine hesitancy; meaning a percentage of the population may delay getting the vaccine or refuse it altogether based on fears that the vaccine is unsafe, ineffective or even unnecessary.

Whilst free-thinking adults in a liberal democracy may be at liberty to decide whether or not they wish to receive the vaccine, the issue becomes a lot more thorny when you have two parents with parental responsibility who have diametrically opposed viewpoints on whether or not their child should receive the vaccine. What can the parents do if they simply cannot agree? And can the court step in to make a decision in such cases?

As opinions on vaccinations become increasingly divided it felt like an opportune time to examine the judicial approach in private law proceedings, and in particular, the recent case of M v H and P and T [2020] EWFC 93.

In this case, a father successfully applied for a specific issue order that their two children be vaccinated. For those not in the know, a specific issue order is an application that a parent can bring pursuant to section 8 of the Children Act 1989 for the court to determine a specific question that has arisen or may arise in connection with a child's upbringing. Examples of specific issue orders include where the parents cannot agree which school the child should go to, or if the child should be privately educated or have a religious upbringing.

By way of background to the facts arising out of this case, the mother and father had separated and the father sought a specific issue to vaccinate the children, against a background of longstanding and contested child arrangement proceedings. His application initially concerned the MMR vaccine, however prior to the hearing he sought to widen his application to include each of the childhood vaccinations currently on the NHS children's vaccination schedule, as well as any vaccinations that may be required for any foreign holidays and the coronavirus COVID-19 vaccination. This application was opposed by the children's mother.

The court held that it was in the best interests of both children to be vaccinated in accordance with the NHS vaccination schedule. However interestingly, the court felt it was not appropriate to rule on future travel vaccinations or the COVID-19 vaccination at this time.  In relation to future travel, the court did not find it appropriate to make orders that may or may not be required at an unspecified time in the future.

In relation to the coronavirus vaccine, the judge felt that there was insufficient information regarding the vaccine available at the date of the judgement. However, the judge expressly stated that the refusal to consider the vaccine in this particular hearing did not signify any doubt in relation to the probity or efficacy of the vaccine. Just that further information and official guidance in relation to the vaccination roll out and its administration for children was required.

Further, the judge outlined that in light of the caselaw on this subject and the principles that pervade these previous judgments, it was therefore difficult to foresee a situation where a vaccination against coronavirus which had been approved for use in children would not be endorsed by the court as being in a child's best interests. Unless of course there had been a credible development in medical science or new peer-reviewed research which called into question the efficacy of the vaccine.

The takeaway from this case?

In line with previous case law, parents who wish for their child to be vaccinated (against the wishes or concerns of other holders of parental responsibility) are likely to be successful when applying for a specific issue order on this point, unless there are some other health considerations or circumstances in a particular case. Whilst the dissenting parents views will be taken into consideration, the test in such cases (as is the test in virtually all private children disputes) will be what is in the best interests of the child or children concerned, as their welfare is paramount.

Absent a credible development in medical science and/or peer-reviewed research that raises a concern regarding the vaccine in question or a well-evidenced contraindication of a particular child, the court will likely direct that a child be vaccinated and non-consenting parents should take note of this guidance.

It is therefore difficult to foresee a situation where vaccination is approved for use in children, would not be endorsed by the court as being in the child's best interests.  However, the position with the coronavirus vaccination and whether this will be deemed to be in a child’s best interest remains to be seen.

For more information on the article above contact Annie Joseph or the Family team.

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