M v H and Covid-19 vaccinations in children – An indication of what might come

With the Covid vaccination rollout progressing so promisingly, it seems it is only a matter of time before the Family Court has to deal with its first case resolving a dispute over whether a child should be given a Covid-19 vaccine.

Separated parents have faced numerous challenges over the last year; home schooling and confusion in early lockdown over whether children were allowed to move between both their homes being two that spring to mind. And whilst rollout hasn’t currently reached the under 18s, and indeed no vaccine for kids has been approved by the MHRA yet, whether to vaccinate against Covid-19 will likely be a topic that separated parents (or even happily married ones) will soon have to tackle. So, what do you do if you have a disagreement you can’t resolve between you?

Firstly, mediation with a trained family mediator may be a help. This is faster, easier and cheaper than going to court, and if you do go to court you’ll have to show that you’ve made some attempt at mediation anyway (known as providing a MIAM - mediation, information and assessment meeting - certificate).

If this doesn’t help you, the Children Act 1989 (‘CA 1989’) is there to assist. Any person with parental responsibility can apply to the court for a ‘specific issue order’ (to allow the administering of a vaccine) or a ‘prohibitive steps order’ (to prevent the other person taking the child for their vaccination). In practice, most parents will find they automatically have 'parental responsibility’ (PR) under the law. It applies to anyone who gives birth to a child, and to the second parent if married to the parent giving birth at the time, subsequently married to them, named on the child’s birth certificate, if they adopt the child or become their legal guardian, or if there is a court order giving them PR.

When making a decision about whether a child should be vaccinated, section 2(7) of the CA 1989 recognises that the opinions of each person with parental responsibility carry equal weight, but the court’s primary consideration will always be the best interests of the child under section 1(1) of the CA 1989. The court will have regard to the ‘welfare factors’ set out in s3 of the CA 1989, the most relevant of these to vaccinations being: ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’, ‘his physical, emotional and educational needs’, ‘the likely effect on him of any change in his circumstances’, ‘his age, sex, background and any characteristics of his which the court considers relevant’, and ‘any harm which he has suffered or is at risk of suffering’.

As no children have been considered for vaccination yet, there is currently no precedent as to how the courts will deal with the issue of Covid-19 vaccines. However, January 2021 brought us the first instance where the Court of Protection was called upon to decide whether a vulnerable adult should be vaccinated, and the recent CA 1989 case of M v H (Private Law Vaccinations) EWFC 93 concerning routine wide-spectrum vaccinations in children, can be of some assistance.

In M v H, the court had to decide whether a child should be given the MMR and other vaccines recommended by the NHS and Public Health England to build immunity throughout childhood. The court made it clear that applying the welfare factors will usually lead to vaccinations recommended by the scientific and medical communities being in the best interests of the child. The judge stated ‘Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated 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.’ There may be factors specific to the child in question that outweigh this, but this will undoubtedly be rare. In relation to Covid-19 vaccines, the judge made clear that she would not opine on the subject whilst there was no imminent question of children being vaccinated, no approved or recommended vaccine for use in children yet, and no published research on the subject of whether any particular Covid-19 vaccine is efficacious in children. Once such things become available, the court will no doubt apply a similar logic as it does with other vaccines.  In a similar vein, the Court of Protection recently held that an elderly lady suffering with dementia and schizophrenia (and lacking capacity to consent to Covid-19 vaccination), should be vaccinated despite her adult son’s protestations. The decision was based on objective factors (research into the vaccine’s safety and efficacy and recommendation for use amongst this demographic) balanced against more subjective ones (such as her increased risk of severe illness given her age, general health, housing situation, inability to understand how to reduce transmission, and consent to other vaccinations earlier in her life). The legislative principles are different when considering children, but the court’s logical approach led by peer reviewed scientific research is likely to be similar.

Co-parenting after separation is never easy, and perhaps even more difficult is the scenario where two married or cohabiting parents disagree strongly on the topic of vaccination. In either case, it would be wise to attempt informal discussions and mediation, and to ensure that you have the weight of peer reviewed research on your side, before going to court. If you believe your child is a special case who is in some way overlooked by official guidance, it may be that the courts will support you, with sufficient evidence.

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