Canadian Case: father granted unilateral decision making power over whether daughter should receive Covid-19 vaccine if and when one becomes available. What is the likely outcome when parental consent to the covid-19 vaccine becomes an issue?
We all live in a period of medical uncertainty when it comes to Covid-19 and the development of a vaccine. Will it be successful? Will there be risks? When will it become available? Importantly for many parents will be the issue as to whether they can ensure their child receives a vaccine in cases where the other parent doesn’t agree to it being administered. A recent case from Ontario, Canada has sparked our attention at Maguire Family Law for this very reason.
Tarowski v Lemieux
The case of Tarowski v Lemieux involved a highly contentious dispute about whether it should be the mother or father who provided day to day care of a child. One of the father’s submissions to the court was that “the mother [had] been negligent in her handling of the child’s health issues, particularly with respect to the child’s vaccination schedule”.
Whilst the court granted the mother day to day care of the child, interestingly they provided the father with the power to make unilateral decisions as to the child’s vaccines. They went on to make comments specifically in relation to any Covid-19 vaccine which may become available, granting the father permission to unilaterally decide whether the child should receive such, if and when it became available.
The court stated the following:
Should a vaccine against COVID-19 become available, these parents will have to decide whether [the child] should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the child] may be a decision to protect other vulnerable people against [the child] spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that [the child’s] parents receive the same advice on this issue from a medical health professional.
When and if such a vaccine becomes available, both parents should meet with [the child’s] doctor to discuss vaccination of [the child] against COVID-19. In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to [the child] being vaccinated against COVID-19. I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives. If the father decides that the child should be vaccinated, and if the child’s regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child’s regular doctor … to administer the vaccination.
The Approach in England and Wales
The decision will leave many parents in England and Wales wondering what approach they can expect to be taken by the family court at home. Many cases have dealt with the issue of vaccinations for children where parents are diametrically opposed in their beliefs as to whether a child should or should not be vaccinated.
If parents cannot agree whether a child should be vaccinated it would require the input of the family court and an assessment of what is in the child’s best interests, and importantly, what the scientific evidence is. Either parent would be required to make a Specific Issues Order application to the Court under the Children Act 1989 for the dispute to be resolved.
In almost all cases, the scientific evidence will be that it is in the best interests of a child to be vaccinated, and courts normally order that children be vaccinated, even where one parent disagrees.
Case Study 1: B (A Child: Immunisation)
In the case of B (A Child: Immunisation) the court was required to determine whether or not a five year old girl should receive three further vaccinations which were overdue: the combined diphtheria/tetanus/whooping cough/polio immunisation; the combined measles/mumps/rubella immunisation (‘MMR’); and the influenza vaccine. The mother wished for the vaccinations to be carried out but the father objected, raising various arguments as to the validity of the scientific evidence being uncertain.
Ultimately the judge held that based on the scientific evidence before the court there was a strong body of scientific research showing that the known risks of particular vaccines did not outweigh the known risks of not being immunised. As such, the judge held that it was in the child’s best welfare to receive her vaccinations.
Case Study 2: Re H (A Child) (Parental Responsibility: Vaccination)
Recently, in the case of Re H (A Child) (Parental Responsibility: Vaccination), the Court of Appeal upheld a decision of the High Court that a child should receive vaccinations contrary to both of his parents’ wishes. The child had been placed under the care of the Local Authority for safeguarding reasons and following such the Local Authority sought confirmation from the Court that they could arrange for the child to receive standard vaccinations, which the child’s parents opposed.
The High Court found that there was no medical evidence which gave rise to any reason why the child should not receive their vaccinations, and the Local Authority was granted permission to arrange these against the parents’ wishes. The decision was upheld by the Court of Appeal.
The decision as to whether the family court will order a child to be vaccinated against one or both parents’ wishes will ultimately come down to what is in the child’s best interests. This in turn will depend on the scientific evidence available. Specifically in relation to any Covid-19 vaccination, until such a vaccine is developed and the results of trials and other information is released, we simply would not know the approach the court would take.
What is clear from a review of the case law in this area is that if any Covid-19 vaccine is shown to be relatively safe for children to receive, based on the decisions of the court in other vaccination cases it would almost certainly be the case that the court would find it in a child’s best interests that they receive it.