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Jab or no jab – what’s the law on vaccinating children?

May 25, 2021 Speech Box

I am being asked more and more frequently what the legal position is with regard to vaccinating minor children, where their parents cannot agree.

There have been two recent cases which have shed light on the situation although unfortunately they don’t relate to the Covid-19 vaccination and older children. 

It is up to adults to decide whether or not they wish to be vaccinated. They are able to assess the risks against the benefits and make a decision for themselves. However, when it comes to children and in cases where their parents are separated there are sometimes two very different views on what the right course of action is. The Court then needs to become involved. 

Where there are two parents both of whom have parental responsibility for a particular child this means that they both have an equal say in major decisions affecting that child.

It is clear in our law that where parents both of whom hold parental responsibility cannot decide on whether their child should receive a vaccination, the parent seeking to vaccinate the child will need to apply to the Family Court for a specific issue order under the Children Act.

This arises from the case of In Re. C (Immunisation) [2003]. In this case the father wanted his child to be vaccinated whilst the mother did not. The judge had to make his decision based on what he felt was in the best interests of that child having regard to the welfare checklist set out in the Children Act and with the assistance of an expert.

The case of In Re. H (A Child) (Parental Responsibility: Vaccination) [2020] related to a public law matter where the child had been placed into foster care and the natural parents of the child objected to that child receiving routine vaccinations and so the local authority sought permission from the Court. 

In addition to dealing with the particular facts of that case the court also gave a summary of the law and the medical research in this area and made reference to the following principles that are important in each of these cases:

  1. All the evidence available supports the position that Public Health England adopts to unequivocally recommend vaccinations as being in the best interests of children.
  2. Vaccinations are not compulsory but the scientific evidence now establishes that it is in the best medical interests of children to be vaccinated unless there is a specific contraindication in any particular case.
  3. The giving of routine vaccinations can’t be regarded as being a serious or grave matter as it had been viewed in the past.
  4. The counsel in the case of Re. H could not find any case law in which a request for vaccination had been refused by the court.
  5. Whilst the views of the parents regarding immunisation must be taken into account, their views are not decisive.

In a further case which dealt with private law, in M v H (Private Law Vaccination) [2020], Macdonald J gave his judgment in December 2020. This was a case in which a father brought a specific issue application to the Court saying that it was in the best interests of his two children, who were aged 6 and 4, to receive the normal childhood vaccinations.  The children’s mother was opposed to the vaccinations. The Court decided that it would be in the children’s best interests to receive the vaccinations and the judge reiterates what was said in Re. H.

The judge also said it was very difficult in his opinion to foresee a situation in which a vaccination against Covid-19 that had been approved for use in the children would not be endorsed by the court as being in the child’s best interests. If there was evidence indicating significant concern for the efficacy or safety of a particular vaccine or a contrary indication specific to a particular child, then it may take a different view.

The judge in this case felt that the instruction of an expert was not necessary when vaccinations had been approved and recommended by the NHS and Public Health England. The judge went on to say that in cases where it was felt that an expert was required this expert was to be instructed on a joint basis and should be someone experienced in the field of immunity and not, as in the case of this mother, pulled from partial and partisan material gathered from the internet.

It concluded that it would be very difficult for a parent to successfully object to vaccinations which were in accordance with Public Health England recommendations.

It is also important to note that the protection of children from the consequence of a disease is sufficiently important to justify the limitation of a fundamental human right.

In conclusion, although at the moment there is no rollout scheme for children to receive the Covid-19 vaccination, it is likely that if this happens and the Court is approached in circumstances where parents cannot agree, the Court will find that it is in the child’s best interests to receive that vaccination and grant a specific issue order in those cases.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me Louise Barretto on 020 7091 2869 or email lbarretto@bishopandsewell.co.uk

Our Family lawyers, Litigation and Forming Families teams have the knowledge and experience to guide you through these challenging times and have rankings in Legal 500 for their expertise.

The above is accurate as at 25 May 2021. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.

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