The Government is offering Covid-19 vaccinations to all 12-15 year olds (children 16 and over were already eligible) and is shortly rolling out jabs for clinically vulnerable children aged 5-11.
I have been thinking about what will happen in two scenarios – first, where a child wants to be vaccinated and the child’s parents are not vaccinated or they are vaccinated, but do not think the child should be vaccinated. The second is where the parents are separated and there is a disagreement between the parents about whether the child should be vaccinated, which may take place within a broader dispute between the parents about other issues.
The context
I will not in this piece set out the law in any detail on the court’s approach to vaccination generally – it is sufficient to say that the established case law is clear that the court has generally endorsed the benefits of vaccination in the reported cases and that includes a recent case allowing the local authority to arrange for a child in its care to be vaccinated against Covid 19. However, any court would need to be aware if a child had particular medical conditions or vulnerabilities which could lead to the Covid 19 vaccination affecting that child adversely. My comments below are made on the basis that there are no medical issues impacting the decision about vaccination.
It may be helpful to understand that whilst the vaccinations are in the school setting, the school is not responsible for the programme. It is managed by an NHS-commissioned School Aged Immunisation Service (SAIS) team made up of health care professionals. SAIS will manage the programme and deal with the issues of parental consent and, where appropriate, the child’s consent.
Scenario one: what happens if a child consents to a vaccine but the parents do not?
The SAIS provider will provide information and discuss the issue with the child and the parents. Ideally the parents will be able to consent and they may well do after discussion and understanding their child’s wishes. If the parents still do not consent, the SAIS provider will consider whether a child is able to consent to the jab ie. is the child considered “Gillick” competent to consent. What does this mean?
First of all it is worth reminding ourselves that any child of 16 and over is presumed to have the capacity to consent to treatment. Obviously this presumption can be challenged if a child has a cognitive or mental impairment.
The phrase “Gillick” competence arose following a House of Lords case in 1986 when a mother challenged the decision of a GP to provide contraception to her child without informing her, the mother. The House of Lords determined that if the child demonstrated sufficient understanding, taking into account their age, maturity, understanding the advantages and disadvantages of the treatment and their ability to explain their rationale, their decision could be taken as consent to the treatment without the knowledge or consent of a parent.
To make this assessment, the health care professional would need to spend some time with the child. Ultimately I would suggest that if a child is considered able to consent to this jab, and is “Gillick” competent, a child’s consent should be sufficient to allow them to have it. Whatever one’s views are about vaccinations, and I do accept that some argue that the research about the effect on children is at an earlier stage of knowledge, the overwhelming evidence about the effectiveness of the Covid 19 jab and the numbers who have had it suggests that any child wishing to have it could not be described as going out on a limb.
Scenario two: what happens if two parents disagree about the jab being given to the child?
In this situation the outcome is likely to depend on (i) whether the child wants the jab and (ii) if the child is competent.
It is likely but not inevitable that any dispute about a jab may be part of a bigger dispute about child arrangements and may be in the midst of a difficult dispute. If the child wants the jab, and is competent, it seems to me that the parent wanting the child to be jabbed is likely on the case law to succeed in their application before the court. If however the child is not competent, I would expect the court to examine all the evidence but I would expect the court on the basis of the case law to order that the jab should be given. If the child is competent and does not want to the jab, I cannot see that the court will order the child to receive the jab.
If there is an ongoing court dispute in which CAFCASS or a social worker are already involved, the court is likely to ask the professional to speak to the child and the parents to resolve this issue. In all cases, I would hope that efforts would continue to provide information to the child or the parent who is not agreeing to the jab and to try and move the parental dispute away from the arena of the court to a forum where a discussion could take place eg. in mediation. There is no need for most health matters to become part of the disputes between parents, and certainly not this one given the impact of the pandemic. I would hope that most parents would not want their child to have Covid 19 and possibly infect others in the family but would also want to mitigate the time their child misses from school by reducing the risk of getting Covid 19 or of serious illness.
The children law specialists at Russell-Cooke can offer advice on any aspect of parental disputes about children, including about vaccination, treatment or medication. We can also offer specialist mediation services to any family wanting to try and resolve this issue away from court.