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This blog has been co-written with Emily James of 36 Group. With thanks to Danny Chapman.
On 13 September 2021 Professor Chris Whitty, the Chief Medical Officer for England, confirmed that 12- to 15-year-old children, who do not have underlying health conditions, would be offered a single dose of the COVID-19 of the Pfizer-BioNTech vaccination which has been regulator approved. This decision has been made despite the Joint Committee on Vaccination and Immunisation (JCVI) deciding not to recommend mass vaccinations of this age group as it concluded that the vaccine would provide only marginal benefit given that they are at low risk from the virus. The decision has been made on a wide cross-section of information available but appears to have been pushed through based on the consideration of the wider risks to children in terms of their schooling, mental health and potential impact on their life chances.
The Government has already authorised the use of the COVID-19 vaccination for 16- to 17-year-olds as infection rates in this age group had been consistently higher, which is likely to be linked to the fact that they can socialise more freely, and in many ways, this decision is less controversial as they are able to give informed consent for their own vaccinations.
Parents of 12- to 15-year-olds have been aware that this decision was likely to be made, as the press and social media, have been reporting and commenting on the question of whether to vaccinate children for a considerable period. The issue of vaccinating children can however be polarising, both amongst different family groups, within relationships, between separated couples, and between parent and child. Particularly as the debate includes the educational and societal benefits of vaccinating this age group, such as the need for schools to remain open with further disruptions to education being kept to a minimum and, and the need to protect the more vulnerable members of society such as children’s grandparents, outweighs the health benefits/risks to children of the vaccine. The volume of information out there on the vaccination programme for children is only compounding the confusion.
The debate is finely balanced given that as reported by the JCVI the available evidence indicates that the health benefits from the COVID-19 vaccination are small in this age group for those without underlying health conditions versus the risk to them of the disease. Balanced against this is the JCVI report that the potential risks from the vaccination are also small, with reports of post-vaccination myocarditis being very rare. In addition to these considerations, the JCVI reports on the Government website that the UK population places a higher emphasis on the safety of vaccination programmes in children than on the benefits. The delayed decision on whether to give this age group a second dose is no doubt also fuelling confusion. Perhaps the position and decisions for parents and children will be easier with the passage of time when the uncertainties as to the benefit versus risk analysis and the extent of the risks become clearer. Parents though do not have the benefit of time as the vaccination programme for 12-to-15-year-olds is already underway in some parts of the country.
With medical research, information, evidence, and trials taking place in more than one country and/or more than one laboratory there is confusion as to what information to trust to help parents decide what is right for their children. Some of the questions being asked are, which one has been tested for long enough to give parents the reassurance that it is safe? Why should children be immunised at all when it is not them who appear, on the whole, to suffer the effects of Covid? Do the wider societal benefits outweigh the marginal health benefits?
It is no wonder then that there is seemingly significant confusion for parents about what to do and with the press reporting that children can be vaccinated if they wish, despite their parents’ viewpoints, we are not only potentially creating conflict between parent and child, but between schools and parents. The conversation about the vaccination programme for children is complex and therefore whether you intend for your child to be vaccinated, are undecided, or are anti-vaccinations; parents should know what the legal position is about vaccinations in this age group.
What was the Courts Approach to Vaccination Cases Pre-Covid?
Whether a child should be vaccinated is primarily a decision for those with parental responsibility. When those individuals cannot agree, one may apply to the Court for a specific issue order that the child should receive the vaccine.
The law in respect of childhood immunisations pre-covid is now settled. Every childhood vaccination has now been rigorously tested and longitudinal studies have demonstrated in cases time and time again that they are safe. Unless there are case-specific circumstances, the courts will sanction immunisation where the issue is disputed between parents and/or as between local authority and a parent.
Before the breakout of Covid-19 in the UK, in the Case of Re H (a child, parental responsibility, vaccinations), the Court of Appeal clarified its position with respect to vaccinations in Children Act cases. Re H was a public law case where care and placement orders had been made in respect of a child but where the parents had objected to the child receiving routine childhood vaccinations. The local authority applied to the High Court for permission to have the child vaccinated. There were issues as to the correct procedural route but, for the purposes of this discussion, the focus is that the court laid to rest any medical or legal issues pertaining to routine childhood vaccination. The judgment of the court made clear that medical evidence had established that vaccinations were generally in the best interests of otherwise healthy children. It was held that the body of science in favour of a child being vaccinated is so strong that an application to prevent ‘the vaccination of a child in care is unlikely to succeed unless there is put before the court in support of that application cogent, objective medical and/or welfare evidence demonstrating a genuine contra-indication to the administration of one or all of the routine vaccinations.’
King LJ said when referring to her comprehensive analysis of the issues and the available medical research:
‘I do so as it is my hope that it will serve to bring to an end the approach which seems to have grown up in every case concerning vaccinations, whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being “necessary to assist the court to resolve the proceedings”… Any expert evidence should ordinarily, therefore, be limited to cases where a child has an unusual medical history and to consideration of whether his or her own circumstances throw up any contra-indications.’
Re H appeared to mark the end of the road, until now. Covid-19 inevitably re-opens the arena and parents who don’t agree on whether their child should be vaccinated will not be long in coming to the courts.
Public Opinion on the Covid-19 Vaccine
Parents throughout the country will be aware of the vaccination debate that existed pre-pandemic and of the current ‘anti-vax’ movement. The Oxford Coronavirus Explanations, Attitudes, and Narratives Survey found that 16% of the population are very unsure about receiving a Covid-19 vaccine, and another 12% are likely to delay or avoid getting the vaccine. They found that 13.8% of the population believe to some extent that immunising children is harmful, and that this fact is covered up.
No doubt many parents have already begun to read the numerous articles about the vaccination development, vaccine benefits, vaccine risks, and the articles and comments from scientists, government, parents, and commentators, and begin their own discussions about whether or not to vaccinate their children. For some the answer will be easy – they will vaccinate. For others, the decision will be more complex. For two parents that agree they do not wish to vaccinate then, as the law currently stands, this is unlikely to be challenged which raises the question of the fairness of the court intervening when parents disagree.
Consideration also needs to be given as to what happens if your child does not agree with your decision regarding their vaccination. Although not regarded as adults, children over the age of 16 are entitled to make the decision about what treatment they receive. Children under the age of 16 do not have the automatic right to give consent/refuse consent to medical treatment, but if they are considered to be Gillick competent, the child’s opinion can override that of the parents which is the situation that has been referenced so frequently of late in the press. When considering whether a child is Gillick competent a healthcare professional will consider the child’s age, maturity, and their understanding of the decision they wish to make, to include any risks that may arise as a result of their decision. It is a concept and approach that health providers are very familiar with. Perhaps, however, families and the NHS, may not have had to grapple with whether a child is Gillick competent or not, on the scale that may now be required given that all 12-to-15 year olds are to be offered a single-dose vaccine.
The Court’s likely Approach to the Covid-19 Vaccine
When considering how the Court may approach a covid vaccine it may not be accurate to draw comparisons with how the Court has approached other vaccines in the past. Children Act cases are built around a framework in which the child’s best interests is the paramount consideration. There is a huge body of science supporting the current childhood immunisations, in most cases, being in a child’s best interests. When we look at the comparatively lesser extent to which children are affected by coronavirus, it is difficult to support a claim that it is in their best interests to have this vaccine. Arguably, it is in the public interest to limit the spread of the virus by children (if further evidence in due course confirms this), and the impact of the virus. In such cases, the public interest is not the Court’s paramount consideration.
Following the outbreak of smallpox in 1853, compulsory vaccinations for children were enforced by the Vaccination Act. This stopped in 1948. Whilst it’s unlikely the government will reverse the position it’s adopted since then by making a covid vaccine compulsory, it’s likely that there will be significant restrictions placed upon those who choose not to have the vaccine. For example, they may not be able to travel to certain countries or attend certain events. Living under such restrictions may not be in a child’s best interests.
In the absence of such restrictions, more creative arguments may need to be adopted when arguing a child should receive a covid vaccine. It could be argued it’s not in a child’s best interests for them to potentially infect older relatives or for them to suffer guilt later in life that they may have spread the virus within their community.
With new strains of the virus being discovered, it is feasible that the Covid-19 vaccine may not be a one-off vaccination for lifetime immunity and may instead be akin to the flu jab being issued annually. This will impact how the courts approach it as Judges will need to consider whether to give blanket orders (i.e. one order for all strains of the vaccine) or will the court have to revisit the decision annually. With courts at capacity, one must question whether the latter approach is feasible?
M v H (Private Law: Vaccination) 
In the judgment of M v H (Private Law: Vaccination)  Mr Justice Macdonald made some obiter comments regarding the covid vaccine. The case concerned whether or not two children should have the MMR vaccine. The mother asserted that she had conducted six years of ‘extensive research’ into the vaccine however, in cross-examination conceded that she had no scientific qualifications beyond school level biology. Furthermore, it was clear she has used the term ‘research’ to describe the process of information gathering online which had provided her with the material which underpinned her arguments against vaccination of the children.
Mr Justice Macdonald made it clear at the outset that it was too premature to make any specific issue order regarding vaccination for Covid-19, but that this should not be taken to be an indication that the Court considered the vaccine unsafe or not in the children’s best interests. He stated, ‘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, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child.’
We’re sure this isn’t the last we will see of this sort of litigation and this case doesn’t provide a final answer, but it is a very helpful encapsulation of the key issues and the guidance provided by authorities.
Any decision by the Family Court is likely to have a far-reaching impact with the potential to affect every family and every child in every country. How each jurisdiction approaches it is likely to impact worldwide thinking.
It is clear that due to a lesser body of science, and a differing impact of the virus on children, the covid vaccine has clear distinctions from other childhood immunisations and must therefore be assessed by the Court with a fresh lens.
If you are experiencing any difficulties in agreeing whether your child should be vaccinated or not with your partner, or even your child, or would like any further information on this issue, then please do not hesitate to contact a member of the team for a confidential discussion about your personal circumstances.
Kate Elliott is Director, Specialist Family Law Solicitor, Mediator and head of our team in Horsham.