Vaccinations have been widely debated in the media of late, even more so than normal. What is the legal position and what if parents disagree? Simon Brown, family solicitor, presents the legal view:
“Immunisation is a central pillar of universal health coverage, and at the heart of comprehensive and sustainable primary health care systems” (2018 “Assessment Report of the Global Vaccine Action Plan”. The World Health Organisation)
Vaccination in the UK is voluntary so if both parents do not want a child to be vaccinated then that child will not be immunised. There are occasions, however, when parents disagree about the vaccination of a child. Should that happen then either parent can make an Application to the court for a ‘Specific Issue Order’, under the Children Act 1989, for the dispute to be resolved by the court.
On an Application for a ‘Specific Issue Order’ which concerns the upbringing of a child, the law requires that the child’s welfare must be the Court’s priority. In determining what is in the child’s best interests, the Law sets out a ‘Welfare Checklist’ in the Children Act 1989. The Act also sets out the general principle that any delay in deciding the dispute before the Court is likely to prejudice the child’s welfare. In looking at these various factors the court must also bear in mind Article 8 of The European Convention of Human Rights. Article 8 sets out the right to respect for private and family life. Clearly the Court in making a decision about the immunisation of a child, could be regarded as interfering with these Article 8 Rights, however, interference is permissible if it is lawful and necessary in a democratic society for certain defined reasons, one of these being in the interests of the protection of health.
In a recent 2018 case, Re B (A Child: Immunisation) HHJ Bellamy, sitting as a Deputy Judge of the High Court, dealt with a dispute between the separated parents of a five year old girl when the Mother wished to have the child immunised but the Father objected. In a very careful Judgment, which drew on a report from leading expert on Immunology Dr Elliman, the Court went through the various viruses/infections which the Mother was seeking immunisation for - Diphtheria, Tetanus, Whooping Cough, Polio, Measles, Mumps, Rubella and Influenza. In determining what was in the child’s best welfare interests the Judge did say that the views of the parents should be carefully considered and retain considerable importance, but they are not necessarily determinative. The Judge recorded that the child had already received some vaccinations and that there was nothing in her medical history to suggest that those vaccination were contra indicated. The Judgment states that Dr Elliman acknowledged that all vaccinations carry risks but that there is a very wide body of research evidence – international and British – concerning the risks of individual vaccines. The known risks of particular vaccines can with confidence be balanced against a known risk of not being immunised with those vaccines. The Judge stated that rational balanced informed decisions can be made. The Court therefore concluded that it was in the child’s best welfare interests that she should receive the vaccines that were recommended for a child of her age and the Court so ordered.
In Re B the Court specifically stated it was not making a commentary on whether or not immunisation is a good thing or a bad thing. The Court was concerned with what was in the best interests of the child the subject of the Application. That will always be the case.
Re B was the sixth published Court decision over the last fifteen years when the Courts have been called upon to decide whether a child should be vaccinated or not. In all of the cases (apart from one) the Court has decided that the child/children concerned should be vaccinated.
In one of the earlier cases in 2003 Mr Justice Sumner decided that a ten-year-old girl should not receive HIB Vaccine because her medical history was on balance against it.
In a case, decided in 2013 by Mrs Justice Theis, where a Mother did not want her two daughters (aged fifteen and eleven) to have the MMR Vaccination and the girls also objected, the Judge did take into account their wishes and feelings. The Judge considered that there was not a balanced level of understanding by the girls of the issues involved. The Court therefore concluded that the two girls should receive the MMR Vaccination as the health risk of getting any of the diseases that the vaccine prevents was clear.
In summary, if one parent wishes to have a child immunised but the other objects then an Application can be made to the Court for a ‘Specific Issue Order’ to resolve the dispute. The Court will not be expressing any view as to whether or not immunisation is a good or a bad thing, but will looking at each case on its own merits and with regard to the welfare interests of the child/children concerned. Having regard to the six reported decisions, the Court is likely to come down in favour of the child being immunised as the risks of the diseases/infection against which immunisation is sought will generally outweigh any risks there might be in giving the vaccine. As stated previously the Court will consider each case on its own individual facts.
(This article has not specifically considered the position of children in care and the procedure when the Local Authority wishes to have vaccinations carried out but the principles applied will be the same )
To discuss any family issues you can contact Simon Brown or the Family team on 01892 526344.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
