Vaccinations have been a controversial topic for some time and disputes over the merits of vaccinating children have garnered much media attention.

Given the ongoing coronavirus pandemic, these are likely to become much more prominent over the next year, especially since the UK’s chief medical officers have recommended all 12–15-year-olds should receive the Covid jab.

One of the reasons why the debate over vaccinating has become so controversial is because it strikes at the heart of an issue parents feel very passionately about: that is, what is in the best interests of their children.

When one person with parental responsibility is convinced that receiving a vaccine is in the best interests of a child, and another person with parental responsibility holds the opposite viewpoint, an impasse is reached which the courts are often asked to decide on.

The discomfort many people feel at trusting such a decision to a body of the state and the inevitable evocation of human rights issues continue to fuel the public’s interest in these cases.

Despite this, the court does have jurisdiction to rule on these cases and essentially order for a child to be vaccinated against a parent’s wishes.

Within private law (as opposed to public cases concerning children in care) where more than one person has parental responsibility for a child each may make decisions for the child in question without the input of the other (Section 2(7) of the Children Act 1989). It is important to note that neither parent is afforded greater responsibility than the other. Therefore, in cases where parents disagree as to what is in the best interests of the child, they have little choice but to apply for a resolution from the court.

One such case is that of M v H (Private Law Vaccination) [2020] EWFC 93. The Judge in this case was asked to rule on whether two children should have the childhood vaccinations included on the NHS vaccination schedule, any future travel vaccinations and the coronavirus vaccination. The mother objected to these, whereas the father wished to have the children vaccinated.

MacDonald J stated that it would not be appropriate for him to make an order in respect of the travel vaccines or the coronavirus vaccine. The court had no indication of any specific vaccine or any planned travel. The Judge held it was inappropriate to rule on the provision of what were (at the time of the hearing) purely theoretical travel vaccines.

In relation to the coronavirus vaccine, MacDonald J was at great pains to say that his decision not to rule on this matter was not due to any doubt on behalf of the court as to the efficacy of the vaccine.

Rather, his reluctance was due purely to the lack of information and official guidance with regards to the mechanics surrounding the delivery of the vaccine to children (at the time). He further emphasised this point by stating that he could not foresee a situation where the court would not order that a vaccination against coronavirus was in the child’s best interests (providing it was approved for use in children and absent any peer-reviewed research indicating the safety of the vaccine was in doubt).

Since this case, the Government has extended the remit of those eligible for the coronavirus vaccine to all 12- to 17-year-olds.

Although the guidance is constantly changing, currently the vaccine is not compulsory. Parents will be asked to give consent, but those aged 16 and 17 do not need parental permission and those under 16 can make their own decision as to whether to have the vaccine if they are considered to have a full understanding of the implications.

Despite M v H coming to the courts prior to the vaccine being offered to children, MacDonald’s guidance was clear. There is little reason to assume that the courts would treat the coronavirus vaccine any differently to those childhood vaccines already addressed.

Ultimately, MacDonald J ordered that each of the children should be given the vaccines as specified on the NHS vaccination schedule.

In his judgment, he addressed existing case law and the mother’s submissions to explain his reasoning. To support her argument, the mother had put before the court material from several online sources, including the views of two doctors who were vocal advocates against vaccination.

MacDonald J cited Re H (A Child: Parental Responsibility: Vaccination) [2020] EWCA Civ 664, stating that the court is of the opinion that it is generally in the best interests of healthy children and the public good to be vaccinated.

They are unlikely to conclude that the vaccines recommended by Public Health England are not in the child’s best interest in the absence of (a) a development in medical science or new peer-reviewed research indicating concerns with the safety of any of the vaccines and/or (b) clear evidence that the vaccine would be damaging to that specific child due to a health issue.

MacDonald J found that the mother’s evidence did not reach this standard. He was further guided in this by Re C (Welfare of Child: Immunisation) [2003] 2 FLR 1095, where he specifically referred to Thorpe LJ’s assertion that partisan material created to push forward a specific agenda in relation to vaccinations should not be allowed to influence the court’s decision.

In the absence of any credible development in medical science or peer-reviewed research indicating concerns with the safety and/or efficacy of the vaccines in question, MacDonald J had no reason not to find the vaccines would be in the children’s best interests.

In this context, he acknowledged that the mother’s views were vehemently expressed, but agreed with the approach in Re H (A Child: Parental Responsibility: Vaccination) that the weight to be attached to these views should be determined by their substance, not the fervency with which they are held. As previously made clear, MacDonald J did not feel the substance of the mother’s views were sufficient to raise concerns as to the safety of vaccination, so he placed modest weight on her objections.

In relation to the mother’s assertion that ordering the children to receive the vaccinations would breach their human rights, MacDonald J did not agree. Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 endorses the approach to proportionality when considering whether a potential breach of human rights is justified. This includes considering whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right.

In this case, MacDonald J opined that protecting the children and the wider community from the effect of these diseases was sufficiently important to justify the limitation of the children’s rights.

M v H (Private Law Vaccination) is not the first case to ask the courts to determine whether a child should be vaccinated, and it seems unlikely it will be the last.

Although every case will be determined by its facts, the court is setting a precedent that when asked to consider whether a child should be vaccinated, in the absence of reliable medical evidence to cast doubt on the safety of the vaccination, they will make an order for the vaccine to go ahead.

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About the Authors

Peter is one of the two founding partners at Burgess Mee Family Law. Having trained at top family law firm Withers LLP, Peter founded Burgess Mee with in 2013, where he advises on the full spectrum of family law issues across the firm’s three offices. Peter is also a FMC accredited mediator.

Jessica is experienced in a broad range of family law matters, including complex financial proceedings involving high net worth individuals, disputes in relation to child arrangements (including relocation), pre- and post-nuptial agreements, applications in relation to the occupation of the family home and non-molestation orders.

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