From Monday 19 July 2021, the Joint Committee on Vaccination and Immunisation (JCVI) is advising that children at increased risk of serious COVID-19 disease are to be offered the Pfizer-BioNTech vaccine.

The Pfizer-BioNTech vaccine is the only vaccine that has been authorised for children in the UK, for those aged 12 or older following a clinical trial conducted in the United States.

The extension of the vaccination programme is confined to specific groups of children to include:

  • Children aged 12 to 15 with severe neuro-disabilities, Down's syndrome, immunosuppression and multiple or severe learning disabilities.
  • Children and young people aged 12 to 17 who live with an immunosuppressed person should be offered the vaccine as recommended by the JCVI to indirectly protect their immunosuppressed household contacts, who are at higher risk of serious disease from COVID-19 and may not generate a full immune response to vaccination.

Under existing advice, young people aged 16 to 17 with underlying health conditions which put them at higher risk of serious COVID-19 should have already been offered vaccination.

Additionally, 17 year olds who are due to turn 18 within the next three months are being invited to schedule a first appointment on or after their 18th birthday.

See Public Health England's full press release JCVI issues advice on COVID-19 vaccination of children and young people - GOV.UK (www.gov.uk)

So presently, the JCVI is not advising routine vaccination of children outside of these groups, based on the current evidence, but it remains to be seen if that advice will change in due course.

The purpose of this article is not to make the case for or against child vaccination. However, one thing is certain: vaccinating children is and has always been a contentious issue. This is particularly true if children are from a separated family and their parents have different views.

Child's best interests

When it comes to family law, where two parents have parental responsibility and they disagree on vaccination, the court will need to make the decision for them on this specific issue. The paramount consideration will be what is in the best interests of the child.

M v H (Private Law Vaccination) was a case in the High Court in December 2020 where the court was asked to rule on whether or not the NHS vaccination schedule for children should be followed. The father's application was originally in respect of the MMR vaccination but before the actual hearing it was extended to cover other childhood vaccines on the current NHS programme and the then potential COVID-19 vaccine when made available for children.

The mother resisted the application for various reasons including that she had concerns about the safety and that to give the children the vaccines would be in breach of their human rights. 

The Court's decision – an inkling of the future approach

The Judge did not agree that human rights would be breached as the objectives of the vaccination were to protect the children from the consequences of the disease and to protect the wider community from the spread of the disease: this was sufficient to outweigh other rights.

The Judge in this case ordered that the existing NHS scheduled vaccines should be given but he did not make a catchall order in respect of future childhood NHS vaccines including the COVID-19 jab. Nevertheless, he did go so far as to comment:

"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 the 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 child."

Now that the vaccination programme has been extended, albeit limited for the time being to defined childhood groups, these comments do seem to suggest that this would be the court's approach to future contested applications which come before it.

What can you as parents do if you do not agree and you want to avoid court?

Applying to the family court to impose a decision on you about your own children is something most parents wish to avoid unless there is simply no other viable alternative. Please do read this article on alternative dispute resolution (ADR) for more detailed information. However, below are other steps to consider before taking the ultimate step of issuing a court application:

  • Communicate – sometimes this is hard and does not work for everyone, but try to discuss your worries with each other and, if necessary, consult your child's GP or treating physician together for further advice to help you reach an agreed decision.
  • Mediate –if direct communication feels too difficult, then you can discuss your concerns with the help of an independent unbiased family mediator to facilitate an agreement.
  • Collaborate – you can engage in the collaborative process to resolve matters. You will both be supported by your respective trained collaborative lawyers in meetings attended by you all together. The cornerstone of these meetings will be a non-confrontational child centric approach and importantly you and your lawyers will sign up not to go to court.
  • Arbitrate – sometimes you may just not be able to agree and someone else will have to make the decision for you. To avoid a court application, if you both agree, then you can jointly appoint an arbitrator to be your decision maker. This is usually a senior solicitor or barrister who is qualified as a children arbitrator. Just like a judge in court proceedings, he/she must make a decision that is in the best interests of your child/ren, taking account of all the relevant factors of your particular case. Albeit the decision is imposed on you, arbitration can be a quicker and more tailored route to an outcome than going court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.