The Courts approach to children and vaccinations in the current climate (covid-19) 

Although the current vaccines for Covid-19 are approved for adults age 18 and older, there is research underway to see how well the vaccine works in children age 12 and over. The results of these studies will be released by summer 2021 and if the results are positive it is likely that the next step will be to roll out the vaccination scheme to children. This may lead to a dispute amongst parents about whether their child should receive the vaccine.

Where there is a dispute between holders of parental responsibility as to whether the children should be vaccinated, and this dispute is not capable of compromise between them then that may require court adjudication by way of a specific issue application under s.8 of the Children Act 1989.

However, in times of uncertainty, the courts approach to vaccines has been recently outlined in the case of M v H (private law vaccination) [2020] EWFC 93. This is a case where the father applied for a specific issue order requiring the children to be given their NHS routine childhood vaccinations to include the MMR. The father broadened his application and further sought an order to allow any future vaccinations i.e., travelling abroad and the Covid 19 vaccination.

The mother opposed the father’s application. Though there is at present no legal requirement in this jurisdiction for a child to be vaccinated, scientific evidence establishes that it is generally in the best interests of otherwise healthy child to be vaccinated. However, the exception to this is where there is credible development in medical science or new peer-reviewed research that indicates significant concern about the efficacy or safety of a vaccine, or a well-established medical contraindication specific to the subject child.

The mother had put before the court material from a variety of online sources, none of which constituted evidence of a credible development in medical science or reliable, peer reviewed research concerning the safety and/or efficacy of the vaccines in issue.

The Judge was satisfied that it was in the children’s best interests to receive the vaccinations listed on the NHS’s childhood screening list and granted the Fathers application. The Judge did not make a determination in relation to either potential future travel vaccinations or a possible future vaccination for Covid-19. 

 The Judge emphasised that he had not deferred reaching a conclusion about the children being vaccinated against Covid-19 because of doubts about the vaccine’s probity or efficacy. His decision not to consider it reflected the very early stage of the Covid-19 vaccination programme, and the fact that it was still unclear whether and when children would receive the vaccine. Nevertheless, this case sets outs very clear and decisive guidelines as to what the court’s approach is in relation to children being vaccinated.

In reaching his decision the Judge also considered whether vaccinations might constitute a disproportionate interference with the children’s rights under Article 8 of the European Convention on Human Rights; he concluded that they did not.

In summary provided the Covid-19 vaccination is approved for use in children by summer 2021, the court is likely to consider such vaccination in a child’s best interests, absent special circumstances and peer-reviewed research evidence. It will be very difficult for a parent to successfully object to vaccination in accordance with the public health recommendations unless there is a credible development in medical science or new peer-reviewed research emerges about the vaccine in dispute. In these circumstances the court will almost certainly require evidence from an expert in the field of immunology.

KBL’s family law team have continued to work and advise throughout the pandemic, if you would like to talk to us about arrangements for children, separation, divorce, maintenance or any other family matter please contact Ceri Thomas / Amera Karim Nazib  or call 01204 527777 / 01254 268790.