Whether to vaccinate or not can be a divisive issue between parents. If both have strong views, whether based on scientific fact or not, there is no grey. It is either yes or no. The recent case of M v H (Private Law Vaccination) [2020] EWFC 93, [2020] All ER (D) 115 (Dec) dealt with this, with what can be ‘thorny issue’ being brought to the fore recently by Covid-19 vaccines being approved for children as young as five years of age.
Consent for vaccination is not a new issue, so it is not surprising that in M v H reference was made to previous case law, which set out the principles to be applied.
Case law
In M v H, the father had applied for a specific issue order that the child should be vaccinated with the MMR (measles, mumps and rubella) vaccine, but the issues were then widened to include all childhood vaccines included on the NHS vaccination schedule, vaccinations required to travel abroad and the Covid-19 vaccine. The mother opposed the application. The judge decided not to include travel vaccines because there was no specific information about travel at the time and the mother had said that she was ’not ruling them out’. So, travel vaccinations were left to be dealt with when there were specific travel plans and if the parents could not then agree.
Having regard to the relevant case law, in particular the Court of Appeal decision in Re H (A Child: Parental Responsibility: Vaccination) [2020] EWCA Civ 664, [2020] 2 FLR 753, MacDonald J said (at para [52]) that:
‘…the observations of the Court of Appeal in in Re H (A Child: Parental Responsibility: Vaccination) … whilst strictly obiter, make it very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child's best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child.’
In the public law case of Re C (Looked after child) (Covid-19 vaccination) [2021] EWHC 2993 (Fam), [2021] All ER (D) 79 (Nov), the local authority asked the court whether it had authority to give its consent for a child in its care to be vaccinated in relation to Covid-19 and flu. The child, his guardian, the local authority and the child’s father wanted him to have the vaccination, but the mother was strongly against this. Poole J referred to Re H (A Child: Parental Responsibility: Vaccination), confirming that the local authority did not need authorisation and (at para [24]) that:
‘… it is unnecessary for me to exercise the inherent jurisdiction, but had it been necessary I would have had no hesitation in concluding that it is in [the child’s] best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and [the child’s] own wishes and feelings.’
Who needs to consent?
If both parents have parental responsibility, both must consent to the vaccine. If only one parent has parental responsibility they can proceed with the vaccine.
Consideration also has to be given to the wishes of the child depending on their age and level of understanding. Gillick competence (per Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 FLR 224) is important if the child either wants or does not want the vaccine and their wish is contrary to a parent with parental responsibility. The Gillick competence criteria has to be considered looking at their individual characteristics, maturity and understanding. If the child is Gillick competent then the parents cannot override the child’s choice.
What to do if parents do not agree
Clearly it is best if the parents can find some way to resolve the issue themselves, rather than via the court. I would suggest the following:
Linda Lamb is a director and solicitor at LSL Family Law
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