Vaccination Disputes – A Reminder

Specific issue applications under the Children Act 1989 can be broad ranging and are frequently the source of significant points of contention between parties. Vaccination disputes between parents (where one parent wants a child to receive a particular vaccine and the other objects) are often hotly contested and the Courts are forced to make a decision as to what will be in the best interests of the child in question. Given the importance of the national vaccination program to our ability to gain control of COVID-19 and the growth of the ‘anti-vaxxer’ movement in recent years it seems a useful moment to reflect on the relevant law.

The Law

Though the question of whether a child should be vaccinate is likely to be of enormous importance to the parent willing to contest the question in Court, Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 noted at [85] that the giving of a vaccination is not a grave issue and that it cannot be ‘said that the vaccination of children under the UK public health programme is in itself a grave issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitely disproved’.

The vaccination of a child forms part of those rights, duties and responsibilities that comprise parental responsibility, but as the Court noted in H v A (No. 1) [2015] EWFC 58 parental responsibility is contingent in nature as it is connected (and subservient) to the obligation to meet the welfare needs of a child. Where parties with parental responsibility clash it is always worth remembering that Section 2(7) of the Children Act 1989 does not give one primacy over the other. Parties with parental responsibility have equal standing and disputes that cannot be amicably resolved must be determined by the court. This was set out in Re H at [94]

Regardless of whether immunisations should or should not continue to require court adjudication where there is a dispute between holders of parental responsibility, there is in my judgment a fundamental difference as between a private law case and a case concerning a child in care. In private law, by s.2(7) CA 1989, where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone. This applies particularly where the parties live in separate households and one parent is the primary carer. As Theis J put it in F v F at paragraph [21], “in most circumstances [the way parental responsibility is exercised] is negotiated between the parents and their decision put into effect.” As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.

When the question comes before the Court the question is, fundamentally, what is in the child’s best welfare interests. In this regard Re H comprehensively reviews the law and sets out the position of the Courts at the time of writing. In M v H (private law vaccination) [2020] EWFC 9 Mr Justice McDonald summarised the conclusions of the Court of Appeal in Re H:

i) It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated.

ii) 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.

iii) All the evidence presently available supports the Public Health England the advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole.

iv) The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: Immunisation against infectious disease, published in 2013 and updated since.

v) The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

vi) The clarity regarding the evidence base with respect to MMR and the other vaccinations that are habitually given to children should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications.

vii) 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.

viii) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.

ix) This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of vaccination.

In the premises a parent seeking to oppose an approved vaccine (which is required) or a vaccine on the NHS vaccine schedule faces a challenging situation. Mr Justice McDonald says at [46] in ‘M v H that there is before this court no credible development in medical science or new peer reviewed research demonstrating to the required standard a significant concern for the efficacy and/or safety of any of the vaccines currently listed on the NHS vaccination schedule’. Such a credible development or new peer reviewed research would likely be required to show that vaccination in line with the NHS vaccine schedule or in line with some other requirement (i.e. travel) is not in the child’s welfare interests.

COVID-19

Of course vaccination disputes might relate to any one of a number of vaccines including the routine ones given to children (i.e. MenB, MMR or PCV), ones recommended or required for foreign travel (i.e. rabies, typhoid or cholera) or any one of a number of other vaccines given in circumstances particular to the individual case (i.e. the BCG vaccine given only to those at higher risk of tuberculosis). In response to the COVID-19 pandemic the global community has developed and rolled out a number of vaccines in record time which are now being relied upon by HM Government as our main tool in the fight against the pandemic. COVID-19 vaccines currently approved for use in England & Wales are:

1. The BNT162b2 vaccine (commonly referred to as the Pfizer-BioNTech COVID-19 vaccine);
2. The AZD1222 vaccine (commonly referred to as the Oxford-AstraZeneca vaccine);
3. The mRNA-1273 vaccine (commonly referred to as the Moderna COVID-19 vaccine)

HM Government’s developing vaccination program is clearly predicated upon getting the approved vaccines into ‘into people’s arms’ as quickly as possible in the words of the Prime Minister. Whilst the elderly and clinically extremely vulnerable are being prioritised for the initial tranches it is not difficult to foresee a situation in the near future when there will be significant pressure for children to receive the vaccine. Indeed, the media have reported in recent months that Sage (the UK’s Scientific Advisory Group for Emergencies) is specifically looking at a vaccination program for teenage schoolchildren to control the spread of COVID-19. Whilst polls show that the majority of parents want their children to receive an approved vaccine as soon as is practicable, many will be understandably cautious about the prospect whilst some will be vehemently opposed.

The anti-vaxxer movement has been growing in the UK in recent years and the media speculate that it may now have as many as 5 million UK followers. I do not propose to recite the background to the movement here (and information relating to the same is freely available online). The rapid nature of the development and approval of the COVID-19 vaccine is giving rise to further concerns. HM Government, Sage and innumerable medical and scientific professionals are countering these concerns and are adamantly clear that the approved vaccines are both effective and safe. It is a reality that some parents will not be reassured, however, and that they will seek to prevent their children receiving the vaccine. If the other parent disagrees with this approach, and no agreement can be reached (something especially difficult where the parents have separated) then the Court will often be turned to with one parent seeking a specific issue order either mandating or preventing vaccination.

The case of M v H (private law vaccination) [2020] EWFC 93 saw the question of a specific issue order for the vaccination of the 2 subject children put before Mr Justice MacDonald. The application was initially for an order that the children receive the MMR vaccine, but it was widened to include all the vaccines on the NHS vaccination schedule, all vaccines required in the future for travel and the future receipt of a COVID-19 vaccine. Mr Justice MacDonald restricted the scope of his decision to the NHS vaccination schedule and the MMR vaccine, but said the following in relation to the COVID-19 vaccine at [4]:

I am also not prepared at this hearing to make a specific issue order with respect to the vaccination of the children against the coronavirus responsible for causing the COVID-19 infection. I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact 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. 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. However, given a degree of uncertainty that remains as to the precise position of children with respect to one or more of the COVID-19 vaccines consequent upon the dispute in this case having arisen at a point very early in the COVID-19 vaccination programme, I am satisfied it would be premature to determine the dispute that has arisen in this case regarding that vaccine.

Whilst the COVID-19 vaccines are new the requirement outlined above for peer-reviewed scientific research indicating a point of significant concern maintains the high bar a parent wishing to oppose an approved vaccine faces. It is likely that authoritative expert evidence dealing with the specific child in question and clearly advising against the use of a COVID-19 vaccine on that child would be required (as a very minimum) if a parent wishes to prevent the vaccination of that child.

At the time of writing there have been no published decisions relating to a COVID-19 vaccine. Disputes about the current (and future) COVID-19 vaccines are, however, likely to arise over the coming months. It is important that, where litigation is unavoidable, parents seek professional legal advice.

The family team at Becket Chambers is highly experienced in all areas of family law and has experience with vaccine disputes. If you have any queries, or would like advice, please do not hesitate to get in touch with the clerks at clerks@becket-chambers.co.uk.