Not everyone shares the same views when it comes to vaccinations in general. Mistrust has led to many parents putting off or not vaccinating their children at all. There are further implications when it comes to the new Covid-19 vaccination. Many are asking: “how do you know it is safe?”.
This will undoubtedly lead to disagreements between parents as to whether their child/children should be vaccinated when the time comes.
When parents are unable to agree whether their child should be vaccinated, and they have exhausted methods of alternative dispute resolution such as mediation, they will need to seek the direction of the Family Court. The court will ultimately decide the outcome based on what is in the child’s best interests.
In England and Wales, where the scientific evidence is that it is in the best interests of a child to be vaccinated, the court will almost always order that vaccinations should be given.
Where a parent opposes the vaccination, that parent would have to show the court that the risks of not being immunised outweigh the benefits of being vaccinated. In order to support their case, the parent would have to reference credible medical science to evidence the risks. Unless this can be achieved, the court will almost certainly order that the vaccinations should be given.
A recent Canadian case - Tarowski v Lemieux - has determined this issue where the court granted a father permission to unilaterally decide whether a child should receive the Covid-19 vaccination, when it became available. This was determined 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 the time the case was heard there was no vaccine available to the general public. 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 the child should receive it. The court therefore pre-empted the issue in order to avoid the parties having to return to court in the future.
The courts in England and Wales have not yet been willing to pre-empt such matters. The case of M v H (Private Law Vaccination) saw a father seeking permission of the court for his children to be vaccinated in accordance with the NHS vaccination schedule. During the proceedings, the father also sought permission for his children to be vaccinated against Covid-19 when it became available.
The judge found that the children should be vaccinated as per the standard NHS schedule. He 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 was not prepared to make an order allowing for the children to receive the Covid-19 vaccination when it became available. He considered it premature to determine this issue “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, the judge did go on to state 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.”
This judgment provides clarity in that although the courts in England and Wales are 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 if parents are in disagreement, the court will most likely favour children being vaccinated. This is provided the vaccination is approved by Public Health England and there is no credible medical evidence disputing the safety of the vaccine for use in children.
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