Can a parent be forced to vaccinate their children?
The last year has been challenging for everyone and we are all suffering from lockdown fatigue and looking forward to when the world will get back to normal. It seems that the vaccines that have been developed against the coronavirus offer the best way out of the lockdown and a return to some sort of normality. We have been assured that all adults, who want it, will be offered the vaccine by the autumn and a lot of the most vulnerable have already been given it. But what about our children?
Vaccinations have proved a very controversial topic in the past, with some arguing that the possible side effects mean that they should not be given to their children. This has led to disputes in the courts. Adults cannot be forced to have the vaccination, but what about children? Not every parent will agree that giving a particular vaccination is in the best interests of their children. The vaccines for coronavirus have only recently been developed and more information is coming out about them all the time. We are bombarded with information from the press and social media, not all of which can be trusted, but it is difficult to tell what is real and what is ‘fake’ news.
Both parents of a child generally have parental responsibility. This was introduced by the Children Act 1989 and is 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 his property’. In effect, this means that, even where a Child is living only with one parent, all others in his or her life with Parental Responsibility are entitled to be consulted about, for example, where the child goes to school, or in respect of medical treatment. If the parents cannot agree on these issues, the court might be asked to decide the issue. This is done by one parent applying to the court for a Specific Issue Order.
The court does, therefore, have the power to make an order that a child is vaccinated against a parent’s wishes. The court has been asked to make decisions on whether or not a child should receive a certain medical treatment, vaccination, and even in cases where the medical professionals believe medical treatment should be withdrawn against a parent’s wishes. In the case of vaccinations, the application is usually made by one parent who believes it is in the child’s best interests for the vaccine to be given, against the other parent who is objecting and refuses to allow it to take place. Medical professionals are often in the middle of this and in some cases, there have been differing views, which the courts have had to resolve.
One recent case was that of M v H (Private Law Vaccination)  which was heard last year by the Family Court. The application was made by the father who wanted an order that the children be given childhood vaccinations according to the NHS vaccination schedule, to include any future, but unspecified, travel and coronavirus vaccinations, to which the mother objected. At the time of the hearing, none of the coronavirus vaccines had been peer-reviewed or passed for use, and there was no evidence of their efficacy. The mother, in support of her objections, produced some material she had downloaded from the internet, including the opinions of two doctors who were prominent advocates against vaccinations generally.
Ultimately, the judge decided that the children should have the childhood vaccines that were included in the NHS vaccination schedule, but he would not make an order to include any additional vaccines. Whilst his decision did not indicate any doubt on his part as to the efficacy of the coronavirus vaccinations that were being developed, at that time, there was insufficient information or official guidance regarding the delivery or efficacy of the vaccination to children to enable him to make the order.
The judgement referred to another case, earlier in the year, of Re H (A Child: Parental Responsibility: Vaccination)  in the Court of Appeal, which set out the view that it is generally in the best interests of healthy children, and the public good, for them to be vaccinated and it was unlikely that a court would conclude that vaccines recommended by Public Health England are not in the child’s best interest where there is no evidence of there having been either a development in medical science or new peer-reviewed research evidence indicating concerns with the safety of any of the vaccines; and/or clear evidence that the vaccine would be damaging to that specific child due to a health issue.
The judge made it clear that the material produced by the mother did not satisfy the requirement to show that the vaccination of the children was not in their interests. He also rejected her argument that forcing them to have the vaccination would be a breach of their Human Rights. This was also supported by earlier cases. One suspects that, if the more information concerning the efficacy of the vaccine in children and guidance on the rollout of the vaccine and requirements in relation to travel restrictions, had been available at the time of the hearing, the judge would have ordered that the children be given the coronavirus vaccines. In the event, an order was made that they should receive the jabs provide for under the NHS vaccination schedule.
In summary, the courts absolutely do have the power to order that a vaccine be given to a child, if it is safe to do so and, in that child’s best interests. Having recognised medical evidence in support of one view or the other is the key to the success or failure of any application, and just turning up with some information taken from the internet or social media without having good scientific evidence for it is not likely to hold much weight with the court. It is important to remember, however, that each case will be determined in accordance with what is in the best interests of the individual and will be dealt with by reference to the Welfare Checklist, which is enshrined in section 4 of the Children Act 1989. The court will look at all the circumstances of the case and have particular regard to the matters referred to in the checklist, namely:
- The ascertainable wishes and feelings of the Child concerned (considered by reference to their age and understanding).
- Their physical, emotional and educational needs.
- The likely effect on them of any change in his circumstances.
- Their age, sex, background and any characteristics of them which the Court considers to be relevant.
- Any harm which they have suffered or are at risk of suffering.
- How capable each of their Parents are of meeting their needs.
- The range of powers available to the Court.
As a parent, if you are faced with a situation where you and the other parent cannot agree on an issue, and you have tried to resolve it through either rational discussion or professional mediation, you may need to consider making an application to the court. You should seek advice before sending off your application form and you will need to do some research on the medical opinion as to the efficacy and side effects of the vaccine being proposed and the views of the doctors who are treating the child (or your GP if they are otherwise healthy with no underlying health conditions) as to whether the vaccine will have any undesirable side effects.
If you require any further information about this or any other issue affecting you or your children as a result of a dispute with a spouse, ex-spouse, partner or former partner, please do not hesitate to call our Kendal office on 01539 723757 to arrange an informal chat with our family lawyer, Andrew Hill.