Private Law – Vaccination of ChildrenPublished on: 10 June 2021
Following a year of lockdowns, the UK is beginning to open up again due to a vaccination programme set to vaccinate 22 million people in the UK by spring 2021. In light of this, there are considerations surrounding the vaccination of children. It is the right of any adult of sound mind to make a choice as to whether or not they wish to be vaccinated against a known disease. However, when it comes to children, it is the decision of the parents (or those with parental responsibility). If the child’s parents have differing views on the issue, the correct procedural route is to apply to the court for a specific issue order.
Before making an application before the court, it is important to be aware of who has parental responsibility for the child in question. Establishing this is the first step. If the child’s parents are married, they will each have parental responsibility. If they are not married and father is not on the birth certificate, he will not have parental responsibility but the mother will. There are also circumstances where other parties will have parental responsibility in situations where there have been previous court proceedings to apply for such. If it is that both parents have parental responsibility and they disagree over the proposed vaccination(s), one or both of the parties will need to apply to court. This will also be the case if there are a number of individuals with parental responsibility.
In the most recent case, M v H (private law vaccinations)  EWFC 93, the father’s initial application was for a specific issue order on the basis that it was in the best interest of the children (aged four and six) to receive vaccinations. This was initially limited to the MMR vaccine but later expanded to include all normal childhood, travel and COVID-19 vaccinations. Following her own research online and discussions with certain medical practitioners, the mother was opposed to such vaccinations. A specific issue order was granted in line with father’s application, in accordance with the normal NHS childhood schedule. However, an order was not made for travel vaccinations or COVID-19 vaccinations, on the basis that they are too speculative and too premature, respectively.
The court’s approach was heavily guided by a previous Court of Appeal decision (Re H (A Child) (Parental Responsibility: vaccination)  EWCA Civ 664) in relation to public law vaccinations. There were a number of key points highlighted for these types of matters where parents cannot agree that were set out within the judgment. These can be summarised as follows:
- The court will become the decision maker, through the mechanism of a specific issue order, if all other forms of dispute resolution have been exhausted.
- Parental responsibility is where an adult has the responsibility to secure the welfare of the child. It was highlighted that this is to be exercised to benefit the child, not the adult.
- In these cases, a specific issue order will only be granted if the court is content that it is in the child’s best interests, as this is their paramount consideration. Such an order should not be granted unless the child will be better off than they would be without the order.
- Although no order was granted with regards to COVID-19 vaccinations due to there not being any formal guidance on this, it was noted that it was “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”.
- Expert evidence was not necessary in these types of disputes when the vaccinations in question have been approved and are recommended by the NHS and Public Health England. If an expert were to be required, this must be a jointly instructed expert.
- Unless there are special circumstances, it would be very difficult for a parent to successfully object to a public health recommended vaccine.
- The strength of a parental objection to a vaccination will not be determinative. The court has the option to order vaccinations “in the face of rooted opposition from the child’s primary carer”.
- Overall, the benefits of vaccination to prevent the child from the consequences of the diseases that they vaccinate against, and to the population more widely from the spread of such diseases, outweighs fundamental human rights.
To conclude, although the UK is not currently vaccinating children to prevent the spread of COVID-19, once this does begin, this is useful guidance as to how the court would handle any such application regarding these vaccinations. Generally speaking, if the NHS and Public Health England are agreeable to a vaccine programme for children, unless there are special circumstances in relation to a child, it does not seem likely that the court would deny the child protection via the vaccine.