When Andrew Wakefield posited his theory – that the MMR vaccine could be linked directly to autism, what subsequently turned out to be his false conclusions awakened a small but hard-core group of people who were fundamentally opposed to vaccination. Their voices have been growing louder by the day as more vaccines to combat Covid-19 have been cleared for use by the regulators.
As most doctors, scientists and public health experts attest, this minority group of anti-vaccine protesters would, in normal times, be dismissed as outliers. In abnormal times, such as now, their voices are being disproportionately heeded by people, many of them parents, who might otherwise be supportive of vaccination programmes. The speed at which the Biotech, Astra-Zeneca, and Moderna vaccines for Covid-19 have been approved appears to be at the root of people’s concerns, particularly those who may have already been harbouring worries about vaccinations more generally.
In the child’s best interests
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. At the moment, there are no plans to vaccinate children against Covid-19 in the near future as they appear to be relatively unaffected by the virus and thus not deemed a priority. 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.
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 although both parents share parental responsibility equally, neither has priority – or primacy - over the other. In the case of a local authority with 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.
Recent rulings favour vaccination
Re H (A Child: Parental Responsibility: Vaccination): Last year (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 and gave leave for the decision (as it was contrary to a previous court decision) to be appealed. At appeal, Lady Justice King delivering the lead judgment observed “… it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitely disproved.
Although this case involved public law proceedings, Lady King did touch on the effect of her ruling on private law proceedings namely that, in the event of a dispute over whether or not child should be vaccinated, a court is likely to rule in favour of vaccination if it had been approved for use in children. While the views of parents should be heard, unless there was a medical contra-indication or peer-reviewed research suggesting that it was not appropriate for children, their opinion, however strongly held, should not determine the outcome of the dispute.
M v H and P and T  EWFC 93: In a private law case heard in 2020 with judgment handed down in December, the judge drew on Lady King’s findings when considering a dispute between a mother and father over whether their children should be vaccinated. The mother’s objections to giving her children the scheduled vaccinations rested on several factors including the fact that they were healthy and thus unlikely to fall ill; as vaccinations are not compulsory, forcing them to be vaccinated would be a breach of their human rights; and the efficacy and safety of the vaccines required more research. In response the father sought an order to compel her to do so. His original application to the court was specifically in relation to MMR but this was subsequently widened to include all NHS approved vaccines, including Covid-19. The mother’s arguments failed to convince the judge who ruled that that the NHS scheduled vaccinations (i.e. MMR and others) were in the best interests of the children on the basis of “credible, peer reviewed scientific evidence”. He declined to rule on whether or not the children should receive the Covid-19 vaccine as there are no current plans to roll out the vaccine to children but noted that the court would be likely to endorse any proposal to vaccinate children against Covid-19 if approved for use.
Children’s best interests likely to include vaccination
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. That said, parents can refuse to vaccinate their children against Covid-19 against public health advice. But if they disagree and the dispute goes to court, the court is likely to rule that the vaccination is in the best interests of their child based on current scientific evidence.
If you need guidance on managing child arrangements, please contact our family law team.