Vaccinating Children – what happens when the parents disagree?

Historically, vaccinating children has been a sensitive subject for some parents. Disputes often arise between separated parents when they cannot agree whether their child should receive a vaccine.

This “taboo” topic has been brought back into focus following the rollout of the COVID-19 vaccination programme in the UK. Children as young as 12 in the UK are now eligible to receive a Pfizer COVID-19 vaccination.

This article will first explain who can make decisions in relation to a child’s medical treatment. Then, the article will outline the different ways parents can resolve a child vaccination dispute. Finally, the article will explore how the courts have approached such disputes.

Who can make decisions?

If a parent is to make any decision about their child, such as whether they are to have a vaccine, they must have what is known as ‘parental responsibility’. Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and their property by law”. Parental responsibility allows a person to make decisions in relation to a child’s medical treatment. If a child's parents are married or in a civil partnership with each other when the child is born, both automatically have Parental responsibility.

What options are available to parents in dispute?

Where parents are in dispute about the vaccination of a child, neither parent has the right to decide a course of action alone. Both parents must agree on an approach to take. If they cannot agree, parents should consider the following options to resolve their dispute:

Option 1 - Negotiation

Initially, we always advise parents in a dispute of this nature to consider resolving matters on an amicable basis, outside the courtroom. This may involve in the first instance straightforward negotiation where the parents meet and attempt to agree to matters. This can be done in the presence of Solicitors if the parents would prefer. 

Option 2 - Mediation

Alternatively, the parents could attempt Mediation. Mediation is a voluntary and confidential form of resolving disputes outside of the courts. An impartial third party (‘the Mediator’) is appointed to help the parties negotiate a solution to their dispute. The Mediator does not have any authority to impose a decision on the parties. Instead, the Mediator helps to facilitate discussion between them, identifies potential solutions, and assists the parties to reach their own informed decisions. The parties can discuss each parent's concerns and worries, and a greater understanding of the concerns could assist the parties in resolving the issue.

Option 3 - Court Applications

If matters cannot be agreed upon outside the courtroom, one parent will need to make an application to the Court for either:

• a specific issue order, or
• a prohibited steps order.

(i) Specific Issue Order

A Specific Issue Order (SIO) is an Order deciding a specific dispute that has arisen in connection with a person's exercise of their parental responsibility for a child. An SIO can be made to resolve a dispute relating to medical treatment, such as whether a child should be immunised.

(ii) Prohibited Steps Order

A Prohibited Steps Order (PSO) is an Order that restricts the actions a person can take while exercising their parental responsibility for a child. The court's willingness to make a PSO will depend on the circumstances presented and what the court considers to be in the child's best interests.

Cases

There have been cases before the courts which offer guidance as to how the courts will approach child vaccination disputes. Brief summaries of these cases are outlined below:

• In 2020, the High Court was tasked with determining whether it was in the best interests of two children aged six and four to be vaccinated in accordance with the NHS vaccination schedule. The Vaccination schedule include the MMR vaccine, but not the COVID 19 vaccine. The Father brought the application for an SIO after the mother objected to the children receiving the vaccines. The mother based her objections upon information she had gathered online. The Court held that it was in the best interests of both the children to be vaccinated in accordance with the NHS vaccination schedule. The Court found that it was clearly established on the basis of credible, peer-reviewed scientific evidence that it was generally in the best interests of otherwise healthy children to be vaccinated with the vaccines recommended for children by Public Health England and set out in the routine immunisation schedule. The mother had placed no credible evidence before the Court to contradict the conclusions reached. Though the Judge did not order the children to have the COVID vaccination, he added: “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”.
• In 2018, the Court had to decide whether a five-year-old girl should receive the combined diphtheria/tetanus/whooping cough/polio immunisation. The Mother brought the application for an SIO after the father objected to the child receiving the vaccine. The Court held that it was in the child’s best interests that she should receive the vaccines recommended by the schedule for a child of her age. The Judge stated in the case: “With respect to the vaccines with which I am concerned, in the absence of peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”
• In 2003, the Court had to decide whether two girls, one four and one ten, were to receive a range of immunisations appropriate for their age. The applications for SIO’s were brought by two separate fathers after two mothers objected to their respective children being immunised. The Court held that for both children in question, immunisation was in their best interests. However, the Judge held that the child aged ten should not receive the HIB vaccine, because the danger for her had passed, or the Pertussis vaccine, because there was no approved vaccine for a child her age.

In summary, we would always encourage parents engaged in a child vaccination dispute to attempt to agree to matters on an amicable basis. This may be through negotiation or mediation. Taking this approach will prevent parents from incurring the significant costs associated with going to Court.

If matters cannot be agreed upon and the dispute reaches Court, the court’s approach has been that immunising healthy children with Public Health England recommended vaccines will be in their best interests.

Holmes & Hills can offer specialist guidance throughout child vaccination disputes.