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Children and the Covid-19 vaccination: The Law

19th March 2021 - Katherine Res Pritchard

With the UKs vaccine rollout progressing, questions are now being raised about the vaccination of children. While younger people are generally less severely affected by the virus, ensuring they are vaccinated is key to preventing transmission and achieving the level of herd immunity necessary to halt Covids spread. This is why, over the last few months, all the major vaccine manufacturers have been conducting tests to ascertain the efficacy of their vaccine among younger people.

From a legal standpoint, vaccination brings up challenging questions about parental responsibility, especially for separated parents.

In fact, it is likely only a matter of time before disputes over whether children should receive the vaccine reach the family court.

In this series of articles, we examine the legal principles that will underpin the courts decision-making process and, in the second part, answer some of the most important questions relating to this issue.

While no such instances have yet occurred, the example of M v H (Private Law Vaccination) [2020] EWFC 93 provides a recent case study which can help to inform our understanding of future judgements.

M v H (Private Law Vaccination) [2020] EWFC 93

In this case, the father applied to the court for a Specific Issue Order (see glossary) to ensure his children, aged 6 and 4, received the full range of vaccinations specified by the NHS vaccination schedule. The mother opposed the order.

While the case originally focussed on the MMR vaccine, it was soon broadened to include all possible future vaccinations, from ones made necessary by foreign travel to the Covid-19 vaccination.

The presiding judge, Macdonald J, declined to made orders for the broader vaccinations: as we were under lockdown at the time of this case, foreign travel was unlikely to occur in the near future and the judge also felt it premature to make an order concerning the Covid vaccine as the details of the vaccination of children had not yet been made clear. He did, however, stress that his decision to not address the future Covid vaccine was not one based on questions over its scientific merit, saying I wish to make abundantly clear to anyone reading this judgment that my decision…does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine.

Basing his decision on previous precedent, namely The Court of Appeal in Re H (A Child: Parental Responsibility: Vaccination), Macdonald J ordered that the children should receive the vaccinations stipulated by the NHS.

What does the law say?

As mentioned above, case law exists that will inform the judges decision.

In advance of this, however, a key starting point is Section 2 (7) of the Children Act 1989 which stipulates that in cases where both parents have parental responsibility (see glossary), they have equal decision-making power.

If a dispute concerning vaccinations arises, the Court may well need to intervene.

M v H (Private Law Vaccination) [2020] EWFC 93 laid out a set of key principles which explained the courts decision. They can be found in full at paragraph 40 of the judgement but, to summarise, as scientific evidence finds that approved vaccination is generally in the best interests of children, it is considered both reasonable and responsible parental behaviour to arrange for a child to be vaccinated.

The crucial factor here, as always, is the welfare of the child or children in question – as vaccinations are overwhelmingly viewed as beneficial by the scientific community, the court is likely to order that they be administered.

There are, of course, exceptions. For instance, if the child has a complicated medical history which could be affected by a vaccination, and this can be proved by evidence, the courts view may differ. Similarly, if any credible development in medical science or peer reviewed research finds a vaccination to be more harmful than beneficial, this too could be a factor.

For answers to some of most common questions regarding vaccination of children, especially around the Covid vaccine, see our FAQs.

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