Written by Rachel Duke
In England, children aged 12 to 15 are eligible for the Covid-19 vaccine. Children aged 5 to 11 who are at higher risk are also eligible.
Whether or not an individual has the Covid-19 vaccinations and boosters is, as we know a divisive issue.
Even following the relaxation of “Plan B”, it is likely that Covid-19 is here to stay in one shape or form and that further boosters will continue to be offered and recommended by the Government and the medical experts.
This issue becomes even more divisive when it comes to children, particularly those whose parents are separated and may not share the same views as to whether their children should have the vaccine. This article looks at the relevant law.
Parental Responsibility (PR)
PR means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and their property by law.
The mother of a child always has PR automatically from birth.
A child’s father can acquire PR in a number of different ways:
- being married to, or being in a civil partnership with the mother
- being registered as the child’s father
- entering into a formal PR Agreement with the mother
- obtaining a PR order from the court.
Anyone named in a child arrangements order as someone with whom a child lives also has PR for that child.
If only one person has PR for a child, then (s)he can act alone in deciding whether a child should be vaccinated.
If more than one person holds PR, then they must agree, or the issue will have to be decided by the court.
Views of the child
If a child wants, or refuses, to have the Covid-19 vaccine and his or her parents disagree with this view then it is a question of whether the child is considered to be “competent” to make the decision. There is no set age for this. It varies according to the child’s individual characteristics, maturity and understanding. If, in the opinion of the relevant health professional, a child, at any age, has the capacity to decide whether to consent to their vaccination, a parent or guardian’s consent (or refusal) cannot override the child’s decision.
However, it may be that individual health trusts decide not to rely on a child’s consent alone and will require parental consent.
The court’s likely approach to specific issue applications relating to the Covid-19 vaccine
If parents or guardians cannot agree on whether a child should have the vaccine, then an application to court for a specific issues order can be made.
Whilst there have not yet been any reported cases between parents dealing specifically with a dispute over the Covid-19 vaccine, there are relevant legal principles that we can apply from previous cases considering other childhood vaccinations.
These principles were summarised in a reported case in 2020 in which the judge did make some aside comments regarding the Covid-19 vaccination.
In that case, the father’s application originally concerned the MMR vaccine, but was later widened to consider all childhood vaccines currently included on the NHS vaccination schedule, as well as prospective travel vaccinations and the vaccination against Covid-19, when it became available.
The judge was not prepared to make an order about the Covid-19 vaccination as he considered that it would be premature in circumstances where the vaccine had not, at that point, been rolled out to children at all (and the children in the case were only 4 and 6 years old).
However, he wished “to make abundantly clear” (his emphasis) that his decision not to make this order did “not signal any doubt on the part of the court regarding the merits of the vaccine”. His decision was made purely on the basis that it was unclear whether and when children would receive the vaccine, and what any official guidance would be.
Importantly, although these comments are not binding, he went on to say that it was: “… 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, [without] 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.”
Whilst it is likely that the courts, when faced with the actual, rather than hypothetical, question of the Covid-19 vaccine may come to a similar conclusion, one consideration is that the Covid-19 vaccine does not form part of the NHS vaccination programme.
Added to that is the advice of the Joint Committee on Vaccinations and Immunisations (JCVI) on the limited medical benefit of the vaccine for children, although that has since been overridden by the chief medical officers essentially for societal reasons.
Each decision will therefore need to be made on a case-by-case basis taking into account what is in the best interests of the child in question.
In a recent case, the court was asked by a local authority to consider whether it was authorised to give its consent to a child it was looking after being vaccinated against Covid-19 and flu. The child’s guardian, the local authority, the child himself and his father were all in agreement on the subject, but the mother was strongly against him receiving the vaccine. The judge decided that in accordance with the relevant principles, there was no requirement for the local authority to apply to the court for the decision to be authorised, “but had it been necessary he would have had no hesitation in concluding that it was 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 his own wishes and feelings.
The practicalities
The NHS has confirmed that most children between the ages of 12 and 15 will be vaccinated at school and that parents, or those with parental responsibility, will receive information about when the vaccine will be offered to their child and will be asked to give their consent. For children aged 16 to 17, their vaccines have been and will be administered at walk-in NHS clinics.
For children aged 12 to 15 years, consent will be sought by the local School Age Immunisation Service (SAIS) provider from the parent or person with parental responsibility in the same way as for any other school vaccination programme, but schools have also been asked to agree a process and then share the information leaflet, consent form and invitation letter supplied by the SAIS team with parents and children.
The guidance that has been provided to schools by the government on this issue also states:
“All parents or those with parental responsibility are asked for consent and will usually make this decision, jointly with their children. The information leaflet is addressed to the child (as the recipient of the vaccine) and encourages them to discuss the decision about the vaccine with their parents.
In secondary schools, some older children may be sufficiently mature to provide their own consent. This sometimes occurs if a parent has not returned a consent form, but the child still wishes to have the vaccine on the day of the session.”
It will also be for the SAIS team to deal with any question over whether a particular child has the necessary competence to give their own consent if his or her parents do not.
Practical tips for parents
It is inevitable that where parents or guardians have differences of opinion about whether their child should be vaccinated or not, direct discussions between them are likely to be difficult and emotions will run high.
If you are in this situation, you should consider seeking the assistance of a neutral third party early on to help facilitate your discussions. A neutral third party can help you to identify the exact issues and areas of concern, and help you try to reach an agreed resolution.
The third party could be a counsellor or therapist, a parenting coach or a mediator.
You may be eligible for free sessions with a family law mediator.
Ultimately, if you cannot agree between yourselves or with the help of a neutral third party, then you may have no option but to go to court and have a judge decide what is best for your child/children by applying for a specific issue order.
Ultimately the court will make its decision based on what is in the child’s best interests and not on the strength of the parents’ particular views. Although, parental views must always be taken into account by the court, along with the wishes and feelings of the children themselves if they are assessed not to have the necessary competence to make the decision themselves.
Given the judge’s comments as set out above, it seems likely that in the absence of specific evidence that indicates receiving the vaccine would not be in the particular child’s best interests (for example, if they had a medical condition) or a further development in medical science, a specific issue order would be made and the child would receive the vaccine.
If you wish to receive advice on this, or any other family law issue contact our family team on 020 8301 4884 or family@alettashaw.co.uk