Who decides whether my child receives a COVID-19 vaccination?
Increasingly in the media there are discussions regarding whether or not adults intend to get vaccinated when the COVID-19 vaccine is made available to them. At present, COVID-19 vaccinations are not being offered to children, however, these discussions highlight the issue of consent to vaccinations for children more generally and the associated decision-making process.
Whilst most persons aged 18 or over are presumed to have the capacity to make their own decisions regarding medical treatment, the ability of children to make such decisions depends firstly upon their age. Anyone under the age of 18 is defined as a child for these purposes.
For children aged 16 and 17, there is a presumption that they have the capacity to consent to receipt of medical treatment.
For children under 16 there is no such presumption. They are instead required to demonstrate that they have the capacity to consent to receipt of medical treatment. This capacity to consent is referred to as “Gillick competency”.
Whether a child is Gillick competent is assessed on an individual basis taking into account criteria such as the age of the child, the child’s understanding of the treatment (including benefits and risks) and their ability to explain their reasoning regarding the treatment. If judged to be Gillick competent, the child can make the decision for themselves.
For children aged under 16 who are not Gillick competent, those with parental responsibility will make decisions regarding the medical treatment of the child. As such, it would be the decision of those with parental responsibility whether or not the child receives the vaccination. However, should a medical professional consider that the decision of those with parental responsibility is not in the best interests of the child, then an application can be made to the court for an order to determine whether treatment proceeds.
What if those with parental responsibility disagree whether the child will receive the vaccination?
Whilst in theory it is sufficient that at least one person with parental responsibility consents to their child receiving a vaccination, it is common practice that, in the event of a dispute, a medical professional will not administer a vaccination without an order of the Court.
The paramount consideration of the court, when determining such applications, is the welfare of the child, and there are certain factors to which the court should have regard including:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- their physical, emotional and educational needs;
- their age, sex, background and any characteristics of his which the court considers relevant;
- any harm which they have suffered or are at risk of suffering; and
- how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs.
In making these decisions, the courts are required to undertake a balancing exercise, taking into account all available evidence presented to them.
The court performed this balancing exercise in the recent case of M v H and others ([2020] EWFC 93) which concerned an application by the father of two children that they be vaccinated in accordance with the NHS vaccination schedule. The mother of the children opposed this application and presented arguments to the court against these vaccinations being in the best interests of the children. Mr Justice MacDonald concluded that it was in the best interests of the children to be vaccinated in this case, citing that the overwhelming medical opinion is that it is in the best interests of otherwise healthy children to be vaccinated in accordance with the schedule recommended by Public Health England. In the event that credible peer-reviewed research demonstrated significant concern, then it is likely that a jointly appointed expert will be required to give evidence on the matter. It was also stated that parental views on immunisations are only relevant to the extent that these have a real bearing on the welfare of the child.
In the above-mentioned case, Mr Justice MacDonald elected to defer making a decision in respect of a future COVID-19 vaccination on the basis that such a decision would be premature given the “early stage reached with respect to the COVID-19 vaccination programme”. However, he did state that “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”, save for credible medical evidence to the contrary such as by peer reviewed research evidence.
Contact a family law solicitor
If you are experiencing difficulties or concerns with regard to vaccinations or medical treatment for your child and require legal advice or assistance please call us on 0800 422 0123 or contact us online.
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