The choice to get the COVID-19 vaccine has been a widely disputed topic amongst adults, but with the introduction of the vaccine for children, this creates new, uncharted territory for parents, and others with parental responsibility, to navigate. At the time of writing, everyone aged 12 and over, and some children aged five to 11, can get a first and second dose of the vaccine. Some children aged 12 to 15, are also eligible for a booster dose.
Family lawyers across the country had been eagerly awaiting the first contested COVID-19 vaccination for children case to come before a Senior Court. In November 2021, the High Court was called upon to adjudicate, following a disagreement between the local authority and parents as to whether a 12-year-old child should be vaccinated against COVID-19. The mother vehemently opposed her son receiving the vaccination.
In respect of all children under a Care Order or an Interim Care Order, a local authority is allowed to present the child for vaccination, whether or not a parent objects, subject to a) there being an ongoing national programme approved by the UK Health Security Agency; b) there being some prior consultation with the parent, and c) the local authority, in its capacity as a ‘corporate parent’, is satisfied that the vaccination is necessary to safeguard or promote the welfare of the child. The advent of the COVID-19 pandemic, however, presented a delicate ‘grey area’ for the local authority, which subsequently sought judicial intervention
The court held that whilst administration of any vaccination is not free from risk of harm, not administering the vaccine also poses a risk of harm to a child. The court granted permission for the local authority to proceed with arranging the child’s COVID-19 vaccinations, subject to the test set out above being met.
For the avoidance of doubt, the court made it clear that in the great majority of cases involving ‘looked after’ children, no court application will need to be made by the local authority, in respect of decisions to proceed with COVID-19 vaccinations, even when there is parental objection. The court was, however, cautious to warn that the legislation does not give a local authority a blanket power to proceed to arrange and consent to vaccinations in every case, and for every child.
Of course, if the child has an underlying condition which may generate an adverse reaction to the vaccine, this is a significant consideration for the local authority given their welfare obligations towards the child – this would make any decision to vaccinate the child ‘grave’, and might even trigger an application by the local authority, the guardian or the parents, to the court.
So, what is the position if the dispute is between parents, rather than with the local authority? At the time of writing, there is no recorded judicial decision in the private children arena, however when looking at previous cases based on other vaccinations, the court is clear that where parents are in a dispute about the immunisation or vaccination of a child, neither parent has the right to make a unilateral decision, despite holding parental responsibility. Instead, an application for a Specific Issues Order should be made to the court, but only when all other attempts to reach an agreement have been exhausted.
For more information on this topic, contact Bastian Lloyd Morris on 01908 546580 or visit www.blmsolicitors.co.uk