The government has announced this week that it will be rolling out the first dose of the Pfizer-BioNTech Covid-19 vaccine to all 16 and 17 year olds Previously, children of this age were only eligible for the vaccine if they were in a priority group or living with someone who has a weakened immune system. This age group will not need their parents’ consent to have the vaccine.
Whilst the Pfizer vaccine has already been approved for use in 12-15 year olds and is being given to those at high risk, the Government is erring on the side of caution and holding off on making a decision about whether to offer this to all children of this age. Given the decision to now offer it routinely to 16 and 17 year olds, it will likely only be a matter of time until it is offered to all 12-15 year olds (and thereafter possibly even younger children). The difference is, however, that the decision to vaccinate will be down to the parents of any under 16’s.
Whilst most of the population are supportive of the vaccine, there is a small percentage (colloquially known as anti-vaxxers) whose voices have been growing louder by the day as more vaccines to combat Covid-19 have been cleared for use by the regulators. The speed at which the various vaccines have been approved has made them nervous that they have not been as rigorously tested as they might have been under normal circumstances.
Should the Covid-19 vaccine become routinely available for children under 16, it is expected that there will be a rise in applications to Court in cases where parents cannot agree whether or not their child should be vaccinated.
It is not the purpose of this blog to delve into the regulation of vaccines or their testing regimes, but to explore the effect such misgivings may have on the future vaccination of children and to review the law pertaining to parental consent and responsibility.
No legal requirement to vaccinate
The law relating to the vaccination of children is governed by the Children Act 1989. As the law currently stands, there is no legal requirement to vaccinate children – it is down to the parents, or the local authority if the child is in care, to determine whether or not their child should be vaccinated and parents do not have to agree jointly to vaccinate their children. However, if one parent actively objects to the decision of the other then the only recourse either parent has to resolve the issue is to go to court as neither parent has priority – or primacy - over the other. In the case of a local authority with parental responsibility for children in care, parents should be consulted but the decision rests with the authority unless there is a medical reason why the child cannot be vaccinated.
In the child’s best interests
Over the past decade or so, there have been several court cases that have dealt with childhood vaccinations that have reiterated the general principles surrounding the vaccination of children, namely that if the vaccine has been cleared for use by the regulator and its use is in the child’s best interests as determined by public health authorities, then the courts will almost certainly rule in favour of vaccination.
Recent rulings are in favour of vaccination
In early 2020, a local authority applied to the High Court to vaccinate a child in its care, whose father had objected to the council using its powers to decide such matters. The High Court ruled in favour of the authority but gave the parents leave to appeal the decision, which they did. The decision of the High Court was upheld that the local authority could use its power to vaccinate the child, despite the parents’ objections. At appeal Lady Justice King commented within her judgment:
“In my judgment, subject to any credible development in medical science or peer-reviewed research to the opposite effect, the proper approach to be taken by a local authority or a court is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects”
Although this case involved public law proceedings, it is clear from this and earlier cases that a court is likely to rule in favour of vaccination if it has been approved for use in children and there has been no medical contra-indication or peer-reviewed research suggesting that it is not appropriate for children. While the views of parents should be heard, these should not determine the outcome of the dispute.
In December 2020, the High Court dealt with an application by a father for his two children to be vaccinated in accordance with the NHS vaccination schedule. The father then sought to include vaccinations for overseas travel and Covid-19. Mr Justice MacDonald, following the guidance given in the above case, granted a Specific Issue Order authorising the vaccinations set out in the NHS vaccination schedule as although the mother objected, there were no special circumstances or peer reviewed evidence in this case that would lead the Court to determine that the children should not be vaccinated in accordance with public health recommendations. Mr Justice MacDonald declined to consider travel vaccinations (as he felt this aspect of the application was too speculative) and the Covid-19 vaccination as at that point it was unclear what recommendations would be given about children receiving the vaccine. He did, however, comment that
“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.”
This is suggestive that, as with other vaccinations, the Court will likely approve children receiving the Covid-19 vaccine if it has been approved for use in children.
For public health authorities, the consistent response of the courts to back the vaccination of children when it is clearly in their best interests is an important endorsement of the need to ‘follow the science’ – and most parents will concur with this conclusion. However, for a small minority, the innate desire to protect their children leads to a subjectivity that makes them more susceptible to the siren voices spreading misinformation about vaccinations. Parents can refuse to vaccinate their children against Covid-19 in defiance of public health advice. But if they disagree and the dispute goes to court, the court will almost certainly rule that the vaccination is in the best interests of their child and they will have limited ability to influence the decision.