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The Covid-19 vaccine has so far been a divisive subject for many adults and so when it comes to making a decision as to whether a child of the family should be vaccinated, it is inevitable that there is a potential for dispute amongst the child’s parents irrespective of whether or not the parents are separated.
In September 2021, the Government announced that, upon the advice of the UK’s four chief medical officers, all children without an underlying health condition aged 12 to 15 in the UK would be offered one dose of the Pfeizer BioNTech vaccine. This advice was based upon consultations with medical professionals and followed the report of the Joint Committee on Vaccination and Immunisation (JVCI). Most children in the age group 12 to 15 are also now invited to receive a second dose from 12 weeks after their first dose.
On 22nd December 2021, the JVCI advised that children aged 5 to 11 in a clinical risk group or in a household with contact with someone who is immune-supressed should be offered a vaccine. By 16th February 2022, the JVCI advised that two reduced doses of the Pfeizer BioNTech vaccine should be offered to children aged 5 to 11 who are not in a clinical risk group. Vaccinating this age group involves the potential for 5 million children to be vaccinated in the UK and it is anticipated that vaccinations will start being offered from April 2022.
In all cases, the offer of a vaccination must be accompanied by appropriate information to enable children and those with Parental Responsibility to provide informed consent to the vaccine.
The JVCI anticipated that by January 2022, 85% of 5 to 11 years old children would have already contracted Covid-19. In many cases the children to whom the vaccine is to be or is being offered will have already contracted Covid-19. Given that the majority of children who have had Covid-19 have either been asymptomatic or had only mild symptoms of the disease, it gives rise to the question as to whether or not it is in a child’s best interest to have the vaccine at all. It is therefore a potential arena for dispute between parents where their respective views differ.
If such a dispute arises then the starting point is to establish who has Parental Responsibility for the child. Parental Responsibility is by the Children Act 1989 defined as:-
“All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and to his property.”
It is important to note that the Act also provides that “where more than one person has Parental Responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility….”
In cases where one parent wishes for a child to have the vaccination and the other does not then neither parent has the right to make the decision alone and it would be necessary for an application to the Court to be made for a Specific Issue Order so that Court can consider as a paramount principle whether or not it is in the child’s best interests to be immunised.
Other considerations are:-
The strength of parental objection has in previous cases regarding immunisation not been a determinative factor.
It is not just about each parent with Parental Responsibility giving consent, but in the case of separated parents, to both being consulted in the first place. There may be no dispute between each parent regarding the principle of whether or not their child has the vaccine, however, if one parent is not consulted because, for example the children spend more time with one parent or have greater dealings with the child’s school then this could create un-necessary resentment.
Not only is it necessary to ensure that consensus exists between parents and anyone else with Parental Responsibility for the child when a decision needs to be made regarding vaccination, but there is also a need to consider the issue of the consent of the child themselves.
Where a child wants or refuses to have the vaccine which is contrary to at least one of their parents or guardians then the issue of their competence would need to be considered. There is no specific age at which a child is assumed to have that competence or capacity to make decisions. This varies according to their individual characteristics, maturity and understanding.
If the health care professional administering the vaccine considers that the child has the capacity to decide whether or not to consent to their vaccination then a parent or guardian’s consent cannot over-ride the child’s decision.
Ideally parents will be able to resolve any dispute following direct discussions, however, if this is not possible then they may have no option, but to seek legal advice or indeed invite the Court to determine what is best for their child. Whilst the views of each parent would be taken into account by the Court in conjunction with consideration as to whether the child themselves had competence to make the decision to consent to vaccination then the Court will make a decision based upon what it considers is in the child’s best interests.
There are presently no reported private law cases dealing specifically with whether or not a child should receive the Covid-19 vaccination either because of a dispute between those with Parental Responsibility or a conflict between the child and their parents regarding consent, however, it is clear that the issue is one upon which parents either collectively or individually may require legal advice.
If you require advice regarding this issue or any other matters concerning your children arising from a separation then please contact our family team. We have offices in Hinckley, Market Bosworth, Stoney Stanton, Leamington Spa & Warwick. You can find details of our offices here.