With COVID-19 cases at an all-time high in many schools across the North East – and classroom bubbles popping left, right and centre – the debate over whether the UK’s vaccination programme should now be extended to include younger age groups is gathering pace.
The US is already vaccinating children between the ages of 12 to 15 and expects to have enough safety data to go even younger from next year. Now that the UK medicines regulator has approved the Pfizer vaccine as safe for 12 to 15 year olds, will the UK follow suit and, if it does, how will parents respond? We know from the vaccine rollout so far that attitudes in the adult population vary greatly, with some viewing it as our only hope of ever seeing the back of the pandemic and others remaining much more cautious.
It is probably fair to assume that not all parents will “be on the same page” if the government changes course and recommends that under-17s should be included within the programme. So, what would the position be if one parent was to object to their child receiving a COVID-19 vaccine?
Children Act 1989
Disputes between parents regarding their child’s access to medical treatment is nothing new, and courts are well accustomed to dealing with disagreements over whether or not a child should be vaccinated.
In all such cases, the provisions of the Children Act 1989 will be central to any proceedings.
Section 1(1) of the Act states that, when a court determines any questions with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.
Section 1(3) of the Act confirms that when a court is considering whether to make, vary or discharge an order which concerns a child, they shall have regard in particular to:-
- the ascertainable wishes and feelings of the child;
- their physical, emotional and educational needs;
- the likely effect on the child of any change in their circumstances;
- the child’s age, sex, background and any characteristics of which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs.
The case of M v H (Private Law Vaccination) [2020]
In the recent case of M v H (Private Law Vaccination) [2020] the mother of two children objected to her children being given routine childhood vaccinations on the NHS schedule, including the MMR. The children’s father, disagreeing with this stance, made an application to the court for a specific issue order under the Children Act 1989, requiring the vaccinations to proceed. He also took the opportunity to widen his application so that it would include any other vaccination that may be required in the future, including a COVID-19 vaccine.
The judge in this case was satisfied that it was in the children’s best interests to be vaccinated, taking the view that scientific evidence has established that it is generally in the best interests of healthy children to be vaccinated.
It was held that the court will only be in a position to conclude that there is significant concern for the efficacy and/or safety of a vaccine if there is a credible development in medical science or new research demonstrating this. That will require, at a minimum, the existence of new, peer reviewed research conducted by a reputable specialist or institution and even then, would probably require a joint expert being instructed.
The father’s application was therefore granted in relation to vaccines in the current NHS childhood vaccinations schedule.
In relation to the father’s request for a COVID-19 vaccine to be included within the scope of the court order, the Judge did not make any specific conclusions as the case pre-dated the most recent research into the use of the vaccine in children. The Judge did however make it clear that, provided the COVID-19 vaccine is approved for use in children and forms part of the NHS childhood vaccination schedule, the court would be likely to consider such a vaccine in a child’s best interest:-
“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 judgement, coupled with the fact that there have been no reported cases (in either private or public proceedings) concerning a child where a request for vaccination has been refused by the court, provides a very strong indication of the position a Court would be likely to take in the event of any disputes between parents regarding the administration of a COVID-19 vaccine in the future.
For further advice or information regarding any of the issues raised in this article, please contact Kath Hill by email at kh@swinburnemaddison.co.uk or by telephone on 0191 384 2441.
