What happens if you want your child to have a vaccination and your child’s other parent does not agree? Or, what if you do not want your child to have a vaccination and your child’s other parent does?
Many parents may now be contemplating the position about their child being vaccinated specifically in relation to the covid vaccine, after the Joint Committee on Vaccination and Immunisation (JCVI) advised that certain categories of children aged 12 to 17 are offered the Pfizer vaccination.
Where parental responsibility for a child is shared between both parents (or other adults involved in the child’s life in certain circumstances), the decision as to whether a child should receive a vaccination ‘ought not to be carried out or arranged by one parent carer’.
The court have dealt with the issue of children being vaccinated in a number of cases including concerning the child ‘J’;
“There is in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under s.2 (7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court.” (Re J [2000] 1FLR 57)
Whilst the case of the child ‘J’ did not relate to immunisations specifically, in a more recent matter concerning the child ‘H’ the court added immunisations to the list of decisions that should not be carried out or arranged by one parent;
“hotly contested issues of immunisation are to be added to that small group of important decisions” (Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664)
Health professionals are advised as follows;
"Although the consent of 1 person with parental responsibility is usually sufficient (see Section 2(7) of the Children Act 1989), if 1 parent agrees to immunisation but the other disagrees, the immunisation should not be carried out unless both parents can agree to immunisation or there is a specific court approval that the immunisation is in the best interests of the child.
If there is any evidence that the person with parental responsibility may not have agreed to the immunisation (for example the notes indicate that the parent(s) have negative views on immunisation), or may not have agreed that the person bringing the child could give the necessary consent (for example suggestion of disagreements between the parents on medical matters) then the person with parental responsibility should be contacted for their consent. If there is disagreement between the people with parental responsibility for the child, then immunisation should not be carried out until their dispute is resolved." (PHE Green Book of Immunisation, Chapter 2, Consent, June 2021)
If an agreement cannot be reached between those who share parental responsibility for a child, then it will be necessary for one (or both) parents to apply to the court, for the court to make that decision. A parent who wishes for their child to be vaccinated, against the wishes of the other parent, will need to apply to the court for an order permitting the vaccination to be given without the consent of the other parent.
Any decision made by the court will be made based upon the child’s best interests and the decision will be made on a case by case basis, specific to the circumstances of each child.
However, before making any application to court in respect of a child, consideration should be given by both parents as to whether an agreement could be reached without asking the court to intervene. For example, either parent could consider making a referral to a local mediation service for assistance in discussing the issue of whether a vaccination should be given, in order to try to aid and facilitate those discussions.
In a recent case concerning a dispute between parents as to whether their child should be vaccinated in line with the NHS vaccination schedule, although the court did not make a determination about the covid vaccination specifically, the court concluded;
‘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, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well-evidenced contraindication specific to that subject child.’ (M v H (private law vaccination) [2020] EWFC 93)
In summary, if those with parental responsibility for a child do not agree as to whether a child should be vaccinated, an application will need to be made to the court for the court to decide. If an application is made to court, the court is likely to determine that providing the vaccination has been medically approved for use in child, it is unlikely that the court will decide against a vaccination unless there is evidence to suggest that the vaccination would be in some way unsafe or ineffective.
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