The sighs of relief were almost audible across the country when approval was given to the vaccines against Covid-19. The creation of the vaccines and the carrying out of the necessary testing in such a short time was an extraordinary achievement and a great credit to the scientists involved.
In the UK, the deployment of the vaccines is now well advanced in a national system with priority being given to those most vulnerable to infection (high risk), largely judged by age and those employed in some of the most essential services including healthcare workers. The evidence is that, save for those with particular conditions, children are low on the vulnerability list and therefore not currently due to be vaccinated.
The time is likely to come, however, when children will be offered vaccination as a protective measure. That possibility is likely to give rise to disagreements between parents as to whether their child(ren) should receive the vaccine.
Please note that what follows relates only to the giving of vaccination against Covid-19 and its variants.
For a parent to have the ability to make a decision about vaccinations, the parent must have what in law is described as ‘parental responsibility’ for that child. Having parental responsibility gives the right and responsibility to make decisions on important issues relating to the welfare of the child, such as
Receiving or refusing permission for vaccination obviously comes within the medical treatment category.
Where the parents are married or in a civil partnership, or, where unmarried, both have signed the birth register, then each has parental responsibility.
In this case, there is no problem and the child can be vaccinated or not, as the parents agree. The only exception to this (and this is a very rare situation) would be if a doctor, usually a senior consultant, concluded that vaccination was essential to the wellbeing (and possibly even the life) of the child but the parents maintained their refusal to give consent to the vaccination taking place.
In that situation, the hospital would have the right to apply for a court order that the child should be vaccinated even in the face of the refusal of permission by the parents. The court would only give that permission if it was decided that the vaccination was essential for the wellbeing of the child and that no other course of treatment was available.
Where one parent is in favour of vaccination and the other is not, then the parent wishing the child to be vaccinated has the ability to apply for a court order that the vaccination should take place. The same principle of the essential wellbeing of the child would guide the outcome.
In a case that came to the Court of Appeal in 2020, it was stated that a court would almost certainly conclude that vaccines recommended by Public Health England (PHE) and set out by the NHS as routine immunisation, would be in a child’s best interest. The Court of Appeal explained that the only reason for a vaccine to not be in a child’s best interests would be:
● There is a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy or safety of a vaccine or;
● A well evidenced medical contra-indication specific to the child.
In another case which was decided in the High Court in December 2020 the Judge said that as long as the vaccination is approved for use in children, then the court would likely consider a Covid-19 vaccine to be in a child’s best interest.
The current government guidance is that children should not be vaccinated against Covid-19 as they have a lower risk of being affected. Only children with a very high risk of exposure and serious outcomes should be offered a vaccination.
At the moment, as children are not due to be vaccinated against Covid-19. It can be assumed that the courts will not be making orders on this issue for the time being. However, in the event that the Covid-19 vaccination is approved for children and added to the NHS list of childhood vaccinations, it is almost certain that the court would grant an application for a specific issue order for a child to have the Covid-19 vaccine, unless one of the exceptions mentioned above applies.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.