In England and Wales, vaccinations are not compulsory legally and it is therefore up to the parents (or those with parental responsibility) of a child to decide whether a child should be vaccinated against specific viruses or diseases.
This is a potential area of dispute between separated parents in circumstances where one parent wishes for their child to be vaccinated and the other does not.
This issue has become even more topical in the last year as a result of the Covid-19 vaccine roll out in England and Wales, and the fact that currently children over the age of 12 who are at higher risk from Covid-19 (or live with someone who is) are eligible to have the vaccine.
Making decisions on behalf of children
Parents who have parental responsibility for a child have equal rights in respect of making decisions for their child(ren). Parental responsibility is defined in Section 3(1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” and this definition has been developed within case law as “an adult’s responsibility to meet the welfare needs of his or her child and is exercised for the child’s benefit and not that of the adult”.
If important decisions for a child cannot be agreed between parents, such as in relation to medical treatment and immunisation, one parent will need to make an application to the court for a specific issue order (an order giving permission of the court for the child to be vaccinated) or a prohibited steps order (an order of the court preventing the child from being vaccinated) under Section 8 of Children Act 1989.
When considering applications under Section 8 of the Children Act 1989, the court has regard to the child’s welfare and in particular the factors set out in the welfare checklist at Section 1(3) of Children Act 1989.
M v H and P and T (2020)
The issue of whether a child should be vaccinated was considered by the Court of Appeal in December 2020 in the case of M v H and P and T. Mr Justice MacDonald considered a dispute over vaccinating the parties’ children in accordance with the NHS routine vaccinations schedule and additionally in respect of the Covid-19 vaccination. In this case the mother objected to the children being vaccinated for various reasons and the father applied for a Specific Issue Order for the children to receive the routine vaccinations including the Covid-19 vaccination.
Mr Justice McDonald, in his judgment, helpfully summarised the law in this area as follows:
- It is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines (although at present there is no legal requirement for a child to be vaccinated against any virus or disease).
- Although vaccinations are not compulsory, scientific evidence establishes that it is generally in the best interest of the child for them to receive vaccinations.
- All evidence presently available supports the Public Health England advice and guidance that recommends that vaccinations are in the interest of both children and society.
- The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule.
- Parental views regarding immunisations must always be taken into account, but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.
Mr Justice McDonald also considered the test set out in the case of Re H (A Child: Parental Responsibility: Vaccination) which found that a court would be unlikely to conclude that vaccinations recommended by Public Health England and included in the NHS routine vaccinations schedule would not be in a child’s best interests unless:
- There is a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy or safety of a vaccine; or
- There is a well evidenced medical contraindication specific to the child.
The court’s decision in respect of vaccinations for children
Mr Justice McDonald concluded that if a vaccine is approved for use in children, the court would likely consider it to be in the child’s best interest unless the test in Re H is met (in this case none of the exceptions applied).
The court therefore made a Specific Issue Order that the parties’ children were vaccinated in accordance with the NHS vaccination schedule but importantly, declined to rule on whether the children should receive the Covid-19 vaccine as this is not yet included on the NHS vaccination schedule.
In summary, for future disputes between parents regarding whether a child should be vaccinated or not, it seems as though the court will look to the NHS vaccination schedule to determine whether it is in the best interests of a child to have a vaccination or not. This means that whilst the Covid-19 vaccination is not on the schedule, we can assume that the court will not be making Specific Issue Orders requiring children to have the vaccine.
It is also unclear how the court will consider the opinion of a child aged between 12 and 15 if they have views that differ to their parents in respect of the vaccine. Currently, consent needs to be provided by parents for the vaccines to be administered to children but the court has not yet dealt with any applications whereby a child does not agree with their parent’s choice to consent to the vaccine or prevent them from having it. This is an area which will develop over the next few years.
NHS vaccinations schedule
The NHS vaccinations schedule can be found on the NHS website (https://www.nhs.uk/conditions/vaccinations/nhs-vaccinations-and-when-to-have-them/).