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Covid Vaccines – will we have more disagreements about vaccinations in family law?
The welcome news of vaccines has given many of us hope that we will soon be out of lockdown and back to a more normal way of living and working following the Coronavirus pandemic striking last year.
At present, Coronavirus vaccines are not available to children under the age of 16, not even those who are clinically extremely vulnerable. However that may change, and it is likely that there will be issues regarding vaccination of such children which will inevitably come before the court in either public or private law proceedings.
How does the court approach the question of vaccinating children in care?
When children are in the care of the local authority under interim care orders, it is not open to a local authority to apply for a Specific Issue Order (SIO) in the face of parental consent not being given for vaccination. Instead, the usual route would be for the local authority to ask the court to invoke its inherent jurisdiction to authorise vaccinations, as MacDonald J in Barnet London Borough Council v AL [2017] 4 WLR 53 had characterised the issue of vaccinations as one of ‘gravity’.
Until the judgment of Hayden J last year in the case of A local authority v M [2020] EWHC 220 (Fam), it was not considered appropriate for the local authority to simply consent to vaccinations based on their shared parental responsibility under the interim care order. However, in this case, Hayden J considered the question of vaccination during the course of the proceedings before final care and placement orders were made in respect of the child.
The court considered as a preliminary matter where the local authority is capable of authorising vaccinations under s.33(3) Children Act 1989 (CA), and Hayden J held at paragraph 14 that:
“I do not in any way intend to diminish the inevitable stress and anxiety that such vaccination will always carry for loving and responsible parents. But neither do I regard them as a 'grave issue' outside the scope of s.33(3) CA.”
The Judge went on to say that he could see “no reason why what are ultimately routine vaccinations should not fall within the scope of the interventions contemplated by s.33(3) CA. Indeed it strikes me as disproportionate to expect a Local Authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination”.
The application in that case came before the court for a declaration under the inherent jurisdiction, which was granted by the court despite it being held that vaccination fell within the local authority’s capabilities under s.33 CA.
The approach of Hayden J was subsequently upheld in on appeal (see Re H (A child) [2020] 3 WLR 1049).
Is vaccination in the child’s best interests?
The parents’ appeal against the order of Hayden J, Re H (A child) [2020] 3 WLR 1049, outlines that “the current established medical view is that the routine vaccination of infants is in the best interest of those children and for the public good” (paragraph 34, per King LJ), with specific immunisations recommended for children being set out in The Routine Immunisation Schedule.
The court of appeal concluded at paragraph 104 of Re H that:
“(i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra-indication in an individual case.”
What about private law disputes?
Again, this has been subject to recent consideration by the courts in December 2020 by MacDonald J in the case of M v H and others [2020] EWFC 93.
In that case, the Father made an application for a SIO initially concerning the MMR vaccine, however the question before the court widened to include all of the childhood vaccines listed on the NHS vaccination schedule, possible vaccinations for future travel abroad, and vaccination against Coronavirus. The Judge’s decision however was confined to the issue of the MMR vaccine alone.
MacDonald J identified that the dispute between the Mother and Father as to whether the children should receive the MMR vaccine is “which of two competing courses of action is in the children’s best interests” (paragraph 7), with the court noting it was not an issue that was legally complex.
The Mother, arguing against vaccination of the children, submitted that the case was distinguishable from the Court of Appeal decision in Re H, as that case concerned public law proceedings, whereas the present case concerned children with no concern for their welfare and having robust immune systems. The Mother also contended that a SIO for vaccination would breach the children’s Art. 8 rights under the ECHR.
Adopting the decision of the Court of Appeal in Re H, MacDonald J held, unsurprisingly, that vaccination would be in the child’s best interests, applying the welfare checklist. It was also not accepted that to make the SIO would be an interference with the children’s Art. 8 rights, with MacDonald J holding that:
“the objective of vaccination, namely to protect the children from the consequences of the diseases vaccinated against and the population more widely from the spread of such diseases, is sufficiently important to justify the limitation of a fundamental right and is rationally connected to the objective.”
Is the Coronavirus vaccine likely to be considered a ‘routine vaccination’ for a child?
This remains to be seen – we are still at a stage where children in the UK under the age of 16 are not invited to have receive the vaccine and this may therefore call into question that it is a ‘routine vaccination’.
However, the case law identifies that where scientific evidence establishes that a vaccine will be in the best interests of a child, and where it is undertaken in accordance with guidance from Public Health England, then, unless the specific facts of a particular case indicate otherwise, the court is likely to conclude that it is in the best interests of a child to be vaccinated.
MacDonald J comments at paragraph 52 of his judgment in M v H that:
“the observations of the Court of Appeal in in Re H (A Child: Parental Responsibility: Vaccination) summarised at paragraph [40] of this judgment, whilst strictly obiter, make it very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the court as being in a child's best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child”
There is no evidence to suggest that any Coronavirus vaccine would therefore receive different treatment by the courts to any other vaccine when questions of this nature arise.
