The issue of vaccinations (inoculations or immunisations) is one which comes up frequently where one parent does not want the child vaccinated, but the other does. The court of Appeal has recenty published a number of judgements which clarify when a child should be vaccinated and which vaccinations they should receive.
Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664
Although this relates to a child in care and both parents opposed vaccination, the points are relevant because in this case the Local Authority also has Parental Responsibility.
The judgement is linked to at the bottom of this page, but the key points are:
- The purported link between the MMR vaccine and autism has been discredited.
- Routine vaccinations in accordance with the Public Health England schedule of childhood vaccinations was not a "grave" or "serious" issue.
- It is both reasonable and responsible parental behaviour to arrange for one's child to be vaccinated in accordance with the Public Health England guidelines
- ... all the evidence presently available supports the Public Health England advice and guidance which unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole.
- Children should receive the recommended vaccinations unless there is a contra-indication that would indicate otherwise, e.g. if they had a medical condition which would mean a certain vaccine should not be give to that child.
If there is a dispute about vaccination which cannot be resolved between the parents with Parental Responsibility, the proper course of action is to bring the matter to the Family Court for a Specific Issues Order.
Re. M v (1) H (2) P & T (Children Represented by their Children's Guardian) [2020] EWFC 93 (15/12/2020)
2 children, 6 & 4 at the time. Mother was opposed to vaccinations, Father sought a Specific Issues Order that the children be vaccinated in accordance with the NHS recommended childhood vaccinations. In this case the children were represented by a Guardian who supported the Father's case.
Mother argued there was evidence the MMR vaccination did not provide lifelong protection and it was better for healthy children to contract the diseases and gain immunity naturally.
The Court decided that "each of the children to be given each of the vaccines that are currently specified on the NHS vaccination schedule".
The Court declined to make any order for vaccination that might be required for international travel due to the unspecified nature of what vaccine may be required for any particular trip at some indeterminate time in the future.
Neither would the Court make an order for any Covid-19 vaccine, specifically stating this was not due to any doubt about the efficacy or justificaiton for giving children the vaccine, but simply because the vaccination programme was still at an early stage and there was no information about when, or if, children would be vaccinated. It was stated however:
As I make clear at the conclusion of this judgment, having regard to the principles that I reiterate below 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.
A review of the law and existing case law is presenting in the judgement.
Neutral citation number: [2022] EWFC 112: [2022] EWFC 112
PERMISSION TO ARRANGE COVID-19 VACCINATION
HHJ Rowe QC sitting in private on 8/8/2022
Analysis and decision
40. I have come to the clear conclusion that the mother’s case must fail, indeed in my judgment it is quite simply a hopeless case.
41. The JCVI recommended that all children aged 5-11 should be offered the vaccine. They did not distinguish between healthy children or children with any unusual medical history. They did not distinguish between children who had, or may have had, or had not had Covid-19. They plainly concluded that they had sufficient data to make the recommendation. They took into account all of the individual factors cited by Mr Hoar and nonetheless concluded as they did.
42. The Government accepted that recommendation.
43. As already set out above, the law that I must apply as set out in Re H and summarised in M v H at paragraph 40 includes that,
“Although vaccinations are not compulsory, scientific evidence now 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.”
“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.”
44. There are no relevant medical contraindicators personal to these girls, and there is no credible development in medical science or peer reviewed research to the opposite effect. Mr Hoar is in effect, therefore, submitting the JCVI was wrong to recommend and the government was wrong to offer the Vaccine to all healthy 5-11 year olds and to encourage vaccination for healthy children in that age-group because for the majority of that group the benefit does not outweigh the risk. It follows, he submits, that this court cannot proceed on the Re H basis 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”.
45. This is, in my judgment, inviting this court to embark on the very exercise,
a. That is contrary to the approach that the High Court and the Court of Appeal have determined the courts should take; and
b. That drew express comment, albeit obiter, from Poole J in Re C when he said,
“I do not consider it appropriate for this court to embark on an investigation into the merits of any competing theses as to whether national programmes of vaccination of 12-15 year olds for Covid-19…are justified as being generally in the best interests of children in those age ranges. In cases that concern vaccines that are part of national programmes, the question of whether expert evidence is necessary will only arise if there is an identifiable, well-evidenced, concern about whether, due to their individual circumstances, a vaccine is contraindicated for a particular child, or if there is, as MacDonald J put it in M v H, “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…”[19]
“Even if such new research were available, I have serious reservations about whether an individual expert or individual judge could or should engage in a wholesale review of the evidence behind an established and continuing national vaccination programme.” [19]
46. I reject the submission that Covid-19 vaccination comes into a different category to other vaccines with different applicable law. Albeit obiter, I find persuasive the views of MacDonald J in the final paragraph of M v H, and of Poole J who applied existing principles to the very issue of Covid-19 vaccination in Re C, albeit to a different coterie of children.
47. I reject the submission that Re C can be distinguished from this case because it was a public law case. Re H was also a public law case, and in all of the cases cited, public and private law cases, the courts have applied the same principles. In both categories of case the welfare of the child is the court’s paramount consideration.
48. I reject the proposition that Re C can be distinguished from this case because the court was there considering the school roll out of the mass vaccination of older children, rather than the mere offer of vaccination to younger children. That is, of course, a factual difference which may lead to more parents of younger children deciding not to vaccinate their children, however I can see no reason why that should lead to the application of different legal principles in the event of a parental dispute or, indeed, if so, what those different principles should be. The JCVI would not have recommended the making of an offer of vaccination to all younger children aged 5-11, and the government would not have accepted that recommendation if either body doubted the efficacy and/or safety of the vaccine for any of that coterie of children.
49. Every parent will, of course, decide whether they think the vaccine should or should not be given to their young children. Vaccination is not mandatory. Any parent who wishes to look in detail at the science, available as it is for public consideration, is perfectly entitled to decide that in the case of their particular children they do not agree to vaccination. The factors cited by Mr Hoar have contributed to the mother’s position although I have already determined that she struggles in principle with any decision about vaccination and she would prefer to leave every such decision to the children to determine. Nonetheless I accept that she is influenced by the factors cited in the Judicial Review and the factors cited before me. If both parents held same view it would be perfectly lawful for them to do so and for the girls not to be vaccinated.
50. The fact is, however, as current case law makes clear, whilst the views of parents are important, where two parents disagree – each entirely possibly with a reasoned and strongly held position – then the court has to make the decision.
51. The children are two healthy girls. They are both struggling with the emotional fall-out of their sustained exposure to their parents’ relationship breakdown, but physically they are well. Nothing specific to them raises any specific individual concern or risk factor connected to vaccination. They are of an age where their parents or, in default of agreement, the court should bear the burden of making the decision and not the girls themselves, young as they are and more especially where they are living primarily with a carer with this mother’s adverse views about vaccination in principle.
52. The science considered by the government may change. The legal principles applicable to vaccination may change. But on the basis of the current science and the current applicable law, I conclude that the father should have permission to arrange for the Covid-19 vaccination offered by the government for the children from time to time. This should be on the same 3 general conditions already in place for the rest of the programme of vaccination from time to time.
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