The roll out of the vaccine to Covid-19 brings a potential new area of dispute, which the family court dealt with recently in the case of M v H and P and T  EWFC 93.
Parental responsibility grants parents or guardians the right to make decisions in respect of a child. This responsibility can be granted or removed by the court where a case warrants this. The definition of parental responsibility is set out at paragraph 3 of the Children Act 1989 and, as Mr Justice MacDonald reminds us in M v H and P and T, concerns an adult’s responsibility to meet the welfare needs of his or her child and is exercised for the child’s benefit and not that of the adult.
Section 8 of the Children Act 1989 allows for a specific order to be made under section 8 where parents cannot agree on an important issue relating to the child’s welfare. In any such application the welfare of the child is paramount and considered above the needs of the parents. The harm the child is at risk of suffering is also taken into account.
In M v H and P and T  EWFC 93, Mr Justice MacDonald considered a dispute between a mother and father over vaccinating the parties’ two children. The mother objected to the children being given NHS routine childhood vaccinations and the father in turn applied for a specific issue order. The father’s application initially concerned the MMR vaccine and ahead of the hearing the application was widened to include all NHS vaccines and the future Covid-19 vaccine. Section 2(7) of the Children Act 1989 provides where more than one person has parental responsibility each of them can act alone without the other. However this section does not give one party priority over the other in exercising their parental responsibility.
The case of Re H (A Child: Parental Responsibility: Vaccination)  EWCA Civ 664, in which the Court of Appeal undertook a careful review of the issues relating to parental responsibility and vaccination, the Court of Appeal found that a court would be unlikely to conclude vaccines recommended by Public Health England (PHE) and set out by the NHS as routine immunisation would not be in a child’s best interest.
The Court of Appeal explained that the only reason for a vaccine to not be in a child’s best interests is:
- There is a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy or safety of a vaccine;
- A well evidenced medical contraindication specific to the child.
In M v H and P and T the mother put forward various online sources to support her case. Her objections were broken down into the following:
- Vaccination is not immunisation;
- A vaccination does not prevent a person from ‘carrying’ the disease;
- Her children had strong immune systems therefore if they contracted a disease they would not suffer complications;
- Further research was required into the question of efficacy and probity of vaccinations for children generally;
- PHE recommendations are falling behind developing science.
- The side effects of a vaccine are more detrimental to children than the effect of the disease itself;
- Her children should be tested for ‘natural immunity’ before the court authorises vaccination of the children; and
- Vaccinations in England are not compulsory therefore it was a breach of the children’s rights under Article 8 (right to respect for private and family life) of the European Convention of Human Rights (ECHR).
Mr Justice MacDonald found the material put forward by the mother was not sufficient evidence to demonstrate a concern for the efficacy and/or safety of the vaccines. Regarding the children’s Article 8 rights MacDonald J found that requiring the child to have a vaccination struck a fair balance between the child’s rights and interests of the community. The Covid-19 vaccine was not dealt with specifically however it was mentioned to likely be in the child’s best interests to have it when possible although guidance at the time of the judgement was no indicating that children were needing to be vaccinated.