14
Mar 2022
What happens if separated parents disagree on the vaccination status of their children?
As a separated parent, raising your children with somebody who is no longer your partner can be complicated, as both parents must work together to establish new ground rules, routines and living arrangements for the children. In many instances, Coronavirus has exacerbated the complexity of co-parenting and we have certainly seen tensions rise in what were previously settled arrangements. With the Covid vaccine now set to be offered to all children aged 5 to 11 it is likely that some parents will experience difficulties in navigating this issue together and we have had several enquiries from anxious parents for whom this is already causing an issue. So, what happens when one parent wants their children to be vaccinated but the other does not? This blog sets out the law on this issue and outlines the likely approach the court may take if parents cannot agree.
Parental Responsibility
For parents to have authority to make significant decisions in respect of their children, they must have parental responsibility. Section 3(1) of the Children Act 1989 defines this as the rights, duties and powers that parents have in relation to children and their property. Historically, the courts have emphasised that in most cases it is in the children’s best interests for both parents to work together to make decisions in respect of their children and this is very often the preference of the parents.
However, Section 2(7) states that where more than one person has parental responsibility, each may act alone in meeting this. This means that in a co-parenting situation, parents can make decisions without consent of the other parent. Yet this does not mean that one parent may have priority over the other in the exercise of parental responsibility. Rather, if parents fundamentally disagree on an important issue in relation to the care of their children- such as whether to vaccinate- one parent’s wishes cannot take precedence over the other.
If an agreement cannot be reached, then one (or both) parents can ask the court to make the decision instead by applying for a specific issue order. Here, a judge will look at the facts of the case, consider the evidence put forward on behalf of both parents and decide exactly what is in the children’s best interests. This results in a Court Order being made which must comply with.
Re M v H (Private Law Vaccination) [2020] EWFC 93
The case of Re M v H (Private Law Vaccination) [2020] EWFC 93 was heard in December 2020. The case concerned a parental dispute between a mother and father over the vaccination status of their two children, P and T. The mother objected to the children receiving their routine NHS vaccinations despite the wishes of the father. As both parents had parental responsibility, but disagreed on the best way to exercise this when it came to the vaccination status of their children, the father applied to the court for a specific issue order. His application initially only concerned the MMR vaccine, but was later widened to include all routine NHS vaccines and the Covid-19 jab.
When delivering his judgment, MacDonald J analysed the case law on the exercise of parental responsibility in relation to childhood vaccinations and concluded that it was still necessary for the court to make decisions where those with parental responsibility could not agree. Applying Re H (A Child: Parental Responsibility: Vaccination) [2020] Civ 664, MacDonald J made it clear that when the case concerns vaccines recommended in accordance with public health guidelines, the court is unlikely to rule that vaccination is not in the child’s best interests and that it would be very difficult for a parent to successfully object to that end.
Again drawing upon Re H, Macdonald J explained that the only times that the court would consider the vaccines as not in a child’s best interests would be the publication of extensive research evidence “indicating serious concern for their efficacy or safety” or a well-evidenced medical contraindication specific to the child, or children, in question.
What is prominent about M v H is the mother’s deep-rooted opposition to the NHS vaccination programme in children and her assertion to that a specific issue order would breach the children’s rights to respect for private and family life under Article 8 of the European Convention on Human Rights as vaccinations are not compulsory. Drawing upon extensive internet ‘research’ and online video sources to support her case, the mother in her statement raised issues with the safety and efficacy of the vaccines, and argued that because her children were healthy they would be unlikely to fall seriously ill with any disease in any event.
Criticising the mother’s choice of “tendentious, partial and partisan material” gathered from the Internet, MacDonald J made it clear in his judgment that despite the mother’s strong personal opposition to vaccine, the weight given to her opinion “depends not upon the vehemence with which it is expressed but upon its substance.” Rather, weight is attached to credible expert and peer-reviewed evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of proceedings, or a well-evidenced medical issue specific to the children.
The mother’s assertion of disproportionate interference with their Article 8 rights was also refuted by MacDonald J. Again following Re H, he asserted that whilst not compulsory, scientific evidence establishes that vaccines are in the best interests of otherwise healthy children. Applying Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190, he also held that the public benefit element of the vaccination programme was a relevant factor in the decision. He argued that in the context of the twin objectives of the vaccination programme seeking to protect the children from the consequences of disease, and to protect the population more widely from the spread of these diseases, a specific issue order for the children’s vaccinations would strike a proportionate and fair balance between the rights of the children and the interests of the community, and as such was not a disproportionate interference with the children’s Article 8 rights.
Summary
To summarise, if those with parental responsibility can’t agree whether their children should be vaccinated, an application will need to be made to the court for a specific issue order. Although in M v H MacDonald J declined to speculate on Covid-19 Vaccinations as at that point the vaccination programme as a whole was still in its infancy, he stated that it would be “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 being in a child’s best interests.”
Because of this, following updated guidance by the JCVI advising that the Covid-19 jab will be available shortly to all children aged 5-11 it seems that the court will likely endorse the vaccine as being in a child’s best interests in the event of a specific issue order application. Though it is true that the court will assess each case individually and assess whether the tests in Re H apply – of either any credible research evidence doubting the safety or efficacy of the vaccine, or any well-evidenced medical reason specific to the child – the courts will most likely consider that ruling in favour of childhood vaccinations strikes a fair and proportionate balance between the rights of the children and the interests of the community at large, regardless of the strength of either parents’ opposition.
If those with parental responsibility find themselves disagreeing about the vaccination status of their children, they should be mindful of the court’s current position in relation to childhood vaccinations. It is worth noting that other options, such as mediation, are available help facilitate and assist discussions on whether vaccinations should be given, before it is necessary to make any application to the court. Such methods can refocus discussions on the issue and help families move forward without the need for any formal court intervention.
If you need some advice about the issues covered in this blog, please get in touch with our family law experts who will be happy to answer any questions you may have, and let you know where you stand – 0800 015 0340 family@chadlaw.co.uk
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