Separated parents in dispute over COVID-19 vaccine for children

Specialist family lawyers say they are getting increasing enquiries from separated parents about what to do should disagreements arise over vaccinating their children against COVID-19.

At present, COVID-19 vaccinations are not being offered to children, however, lawyers at national firm Clarke Willmott LLP say discussions should be had around the issue of consent to vaccinations for children at the earliest opportunity.

Sarah Wood-Heath, partner in the family law team at the firm, said: “We are hearing of some cases where those with parental responsibility are disagreeing over whether the child will receive the vaccination. It is common practice that, in the event of a dispute, a medical professional will not administer a vaccination without an order of the Court.

“The paramount consideration of the Court, when determining such applications, is the welfare of the child. In making these decisions, the Courts are required to undertake a balancing exercise, taking into account all available evidence presented to them.”

The court performed this balancing exercise in the recent case of M v H and others ([2020] EWFC 93) which concerned an application by the father of two children that they be vaccinated in accordance with the NHS vaccination schedule. The mother of the children opposed this application and presented arguments to the court against these vaccinations being in the best interests of the children. Mr Justice MacDonald concluded that it was in the best interests of the children to be vaccinated in this case, citing that the overwhelming medical opinion is that it is in the best interests of otherwise healthy children to be vaccinated in accordance with the schedule recommended by Public Health England.

In this case, Mr Justice MacDonald elected to defer making a decision in respect of a future Covid-19 vaccination on the basis that such a decision would be premature given the “early stage reached with respect to the COVID-19 vaccination programme”. However, he did state that “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”, save for credible medical evidence to the contrary such as by peer reviewed research evidence.

Sarah has also pointed out that it is not always down to the parents to make a final decision.

“Whilst most persons aged 18 or over are presumed to have the capacity to make their own decisions regarding medical treatment, the ability of children to make such decisions depends firstly upon their age. Anyone under the age of 18 is defined as a child for these purposes,” said Sarah.

“For children aged 16 and 17, there is a presumption that they have the capacity to consent to receipt of medical treatment, while for children under 16 there is no such presumption. They are instead required to demonstrate that they have the capacity to consent to receipt of medical treatment. This capacity to consent is referred to as ‘Gillick competency’.”

Whether a child is Gillick competent is assessed on an individual basis taking into account criteria such as the age of the child, the child’s understanding of the treatment (including benefits and risks) and their ability to explain their reasoning regarding the treatment. If judged to be Gillick competent, the child can make the decision for themselves.

Sarah said: “For children aged under 16 who are not Gillick competent, those with parental responsibility will make decisions regarding the medical treatment of the child. As such, it would be the decision of those with parental responsibility whether or not the child receives the vaccination. However, should a medical professional consider that the decision of those with parental responsibility is not in the best interests of the child, then an application can be made to the court for an order to determine whether treatment proceeds.”

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

Anyone experiencing difficulties or concerns with regard to vaccinations or medical treatment for their child can contact Sarah Wood-Heath online or call 0800 422 0123.

For more information visit www.clarkewillmott.com