What is the current position?
As we look back this week at twelve months in lockdown and nearly a month of carefully monitoring the impact schools reopening has had on Covid-19 infection rates, talk has turned to whether steps should be taken to vaccinate children against the virus. So, from a family law standpoint, what is the current position?
Q: Has the government recommended vaccinating children?
A: At present no decision has been made and tests are still needed to check the vaccine is even safe for children, having only been approved so far for those over 16. The fact that discussions are being had at all about this may, however, have led parents to consider whether it is something they would want their child to have.
The government have been clear that there is no intention to make the vaccine compulsory and so it will be a decision for parents to think about. While some will no doubt be keen to vaccinate their children, the ‘anti-vax’ movement has been out in force since the vaccine was rolled out, and even those not usually against vaccination in principle may be wary given the rumours periodically going around about possible side effects. It’s also entirely possible that parents (both separated parents and those still together) may disagree on what is best for their child.
Q: Legally what can be done if parents disagree on whether to vaccinate their child?
A:
1. First, consider who has ‘parental responsibility’ (PR), which gives a parent the ability to make medical decisions. Mothers automatically obtain this when they give birth, but fathers must be married to the mother when the child is born or named on the birth certificate to obtain PR and have input on medical decisions.
2. Try to discuss matters amicably and reach an agreement. If this isn’t possible by direct conversations, consider meeting with a family mediator to try and negotiate an agreement, or instructing solicitors to help guide discussions.
3. If negotiation fails, then an application can be made to court for a ‘Specific Issue Order’ which will ask a judge to decide whether the child should (or should not) be vaccinated. This should only be used as a last resort as it can be a costly process.
Q: What are the Courts likely to do?
A: As the Covid-19 vaccine is so new, there has been very little exploration of it in the courts, but previous vaccination cases make clear that barring medical evidence against a vaccine or exceptional circumstances, the court are likely to order that a child be vaccinated if the vaccine under dispute is in line with public health recommendations.
This was echoed most recently in the case of M v H heard in December 2020 where the judge refused to make a speculative order about the Covid vaccine when it is not yet available to children, but stated 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.”
Q: What ‘medical evidence’ is needed?
A: Ideally, any medical evidence relied upon should be peer-reviewed research or a report from an immunology expert, as the court have in the past criticised evidence obtained from the internet and deemed ‘junk science’, even if the objecting parent considers it compelling.
Q: Is this something to start thinking about now?
A: Court applications usually take several months, particularly where medical evidence is needed and especially given current lockdown regulations.
While every effort has been made to keep the court system running through video/telephone hearings, delays have inevitably arisen. It is therefore worth having these conversations with your co-parent now, so you have sufficient time to pursue an application if you cannot agree.
Beth Courtney-Walker, Family Law Solicitor, Jacksons Law Firm
24.03.2021
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