Family solicitors brace for rise in exes battling over their children getting COVID-19 vaccination

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With COVID-19 vaccinations set to be offered to 12- to 15-yeard old’s, family solicitors from a leading UK law firm are anticipating a surge in divorced and separated parents disagreeing on vaccinating their children.

“This is something we are expecting and preparing for,” said Victoria Gethin, Head of Family Law at Stephensons. “As some children in England become eligible to be vaccinated against COVID-19 some parents and legal guardians may face a situation where one parent wants their child to be vaccinated, and the other does not.

“Increasingly this could occur with parents who are divorced and separated and where relationships are strained at the best of times, but it may also occur with married couples and others with parental responsibilities who have opposing views on the matter.”

There is also the added complication of a scenario where the child themselves and their parents disagree on whether or not to be vaccinated which could see the child overrule their parents.

Now Stephensons is offering families advice and guidance on how to avoid potential conflict and the options available should they disagree on vaccinating their children.

What is the current situation?

The UK’s four Chief Medical Offers have recommended that all children aged 12 to 15 are offered one jab of the Pfizer vaccine. The decision has been made for a number of reasons including to reduce outbreaks of coronavirus in schools. 

It is expected children will be vaccinated at school and jabs are expected to start being given in the coming weeks.

The Joint Committee on Vaccination and Immunisation (JVCI) had previously advised that some children aged 12 to 15 in England - including those that live with someone who is more likely to get infections, have a condition that means they are at high risk from COVID-19 or have a condition such as cerebral palsy – should be offered the Pfizer COVID-19 vaccine ,however the JVCI had assessed that the margin of health benefits from vaccination were too small to support universal vaccination of health 12 to 15 years olds.

For children aged 12 to 15 to be vaccinated, consent will be required, and while the Pfizer vaccine has been found to be safe and effective by the Medicines and Healthcare Products Regulatory Agency (MHRA), there is likely to be scenarios where parents don’t agree.

Can a child be vaccinated if their parents disagree? 

Victoria explains: “In short, doctors, nurses and other healthcare professional are advised by Public Health England* not to vaccinate a child unless both parents can agree to immunisation or there is a specific court approval that it is in the best interests of the child.

“If there is any evidence that the people with parental responsibility for the child disagree, then the vaccine should not be given until the dispute is resolved.”

What if parent and child disagree?

There are circumstances where a child under 16 can be deemed able to make a decision about their own medical treatment, this is known as Gillick competent. An assessment of whether a child is Gillick competent is based upon that child’s own individual circumstances including their age and their understanding.

The guidance provided by the NHS confirms that where a child is not considered to be competent, the consent for the vaccine must be provided by those with parental responsibility for the child.

If the child is assessed as having competency to make the decision, then the guidance suggests that their parents should still be involved with the process.

What options do parents have?

If an agreement cannot be reached between those who share parental responsibility for a child, then one or both could apply for a court to decide, however this should be a matter of last resort and the court will expect parents to have attempted to resolve the matter between themselves first.

A parent who wishes 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.

A court will base its decision on what is in the child’s best interest and the decision will be made on a case-by-case basis, specific to the circumstances of each child.

Victoria adds: “However, going to court should be seen as the last resort and I would strongly advise other options are considered before going down this route. Disagreeing parents could consider making a referral to a local mediation service for assistance.”

Has a court said anything on this?

A recent case** looked at a dispute between parents as to whether their child should be vaccinated in line with the NHS vaccination schedule. While this did not look at COVID-19 vaccination specifically, the court said 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’.

Victoria offers the following top five guidelines to parents:

  1. Speak to your child’s GP for more information about the risks and benefits of having the vaccine. If you have doubts about the accuracy of the information either you or the other parent has read on the internet or has heard, you should also check this with your GP.
  2. We would always encourage parents to try reach an agreement between themselves. Explain your views to each other and remember throughout the conversation that your child’s best interests should be the main consideration.
  3. Mediation can often be a helpful way of resolving disputes. A mediator is an independent third party and they will be able to help both of you manage the conversation and try to reach an agreement.
  4.  The court requires parents to have attended a Mediation Information and Assessment Meeting (MIAM) before making any application to court. There are some exemptions to this (for example where there has been domestic abuse).
  5. Finally, court is a long and costly process. We would strongly recommend that you seek legal advice before making any application to court to ensure that you have exhausted all other options.

*Consent: the green book, chapter 2:Consent: the green book, chapter 2 - GOV.UK (www.gov.uk)

**M v H (private law vaccination) [2020] EWFC 93