Will the Court Order my Child to be Vaccinated Against COVID-19?

Parental Disagreements: Will the Court Order my Child to be Vaccinated Against COVID-19?

Last August I wrote about what the likely outcome would be should parents be in dispute about whether or not a child should be vaccinated against COVID-19. A link to that article can be found here.

To quickly summarise the general position when it comes to the vaccination of children; where parents are unable to agree whether a child should be vaccinated, they will need to seek the direction of the Family Court who will ultimately decide the outcome based on what is in the child’s best interests.

When writing in August I cited the case of Tarowski v Lemieux, a Canadian case in which the Court granted a father permission to unilaterally decide whether a child should receive the COVID-19 vaccination, if and when it became available, on the basis that the mother could not be trusted to make informed decisions when it came to the issue of vaccinations and what was best for the child. At that time there was still no vaccine available to the generally public, but the Court took the unusual approach of pre-empting one becoming available and the fact that it would almost certainly lead to a dispute between the parties as to whether or not the child should receive it. In order to avoid them having to return to Court at a future date to decide the matter, the Court pre-empted the issue entirely.

In England and Wales, in almost all cases where the scientific evidence is that it is in the best interests of a child to be vaccinated, regardless of one parent’s beliefs to the contrary, the Court will almost always order vaccinations be given. The reality is that unless the parent who does not want the child to be vaccinated is able to show that the risks of not being immunised outweigh the benefits of being vaccinated, with reference to credible medical science or peer-reviewed research, then ultimately the Court is almost certainly going to order that vaccinations be given.

Recently a case in England has caught my attention due to the comments made by a judge in regards to whether or not a child should receive the COVID-19 vaccination in the future. The case of M v H (Private Law Vaccination) involved a father seeking permission of the Court for three children to be vaccinated in accordance with the NHS vaccination schedule, which was opposed by the mother. During the proceedings the father also raised the issue of whether he could seek permission to have the children vaccinated against COVID-19 when it became available for them.

Firstly, the judge held that the children should be vaccinated as per the standard NHS schedule. Referring to leading case law, the judge stated that “whilst not compulsory, scientific evidence establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.” The judge went on to state that “a court will be unlikely to conclude that immunisation with the vaccines that are recommended for children by Public Health England and set out in the routine immunisation schedule is not in a child’s best interests absent (a) a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application and/or (b) a well evidenced medical contraindication specific to the child or children who are subject of the application.”

In regards to whether or not the children should receive the COVID-19 vaccination however, the judge declined to deal with that specific issue at the hearing on the basis that “given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.”

However, notwithstanding the above position the judge made it clear that they could not foresee a position where the Court would decline a parent permission to vaccinate a child against COVID-19, stating 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.”

What is clear from this judgment is that whilst the Court in England and Wales is unlikely to make any orders about future vaccinations against COVID-19 for children, if and when vaccinations for children do begin then it is almost certain that in the absence of any credible medical evidence disputing the safety of the vaccine for use in children, that if parents are in disagreement the Court will almost certainly be in favour of children being vaccinated if approved by Public Health England.

Rob Webster is a dual qualified solicitor, first admitted in New Zealand in 2015. Rob likes to take a pragmatic approach to work and takes care to always be available to his clients to assist them in what is often the most stressful period of their lives. He is committed to providing the very best client service and is available to assist in all aspects of family law, including divorce, finances, children matters and cohabitation disputes.