Vaccinations have been a controversial topic for some time and disputes over the merits of vaccinating children have garnered much media attention. Given the ongoing coronavirus (COVID-19) pandemic, and the work of the scientific community, these are likely to become much more prominent over the next year.
One of the reasons why the debate over vaccinating has become so controversial is because it strikes at the heart of an issue parents feel very passionately about, ie what is in the best interests of their children? When one person with parental responsibility feels receiving a vaccine is in the best interests of a child, and another person with parental responsibility holds the opposite viewpoint, an impasse is reached which the courts are often asked to decide on. The discomfort many people feel at trusting such a decision to a body of the state and the inevitable evocation of human rights issues continue to fuel the public’s interest in these cases.
Despite this, the court does have jurisdiction to rule on these cases and essentially order for a child to be vaccinated against a parent’s wishes. Within private law (as opposed to public cases concerning children in care), where more than one person has parental responsibility for a child each may make decisions for the child in question without the input of the other (Section 2(7) of the Children Act 1989). It is important to note that neither parent is afforded greater responsibility than the other. Therefore, in cases where parents disagree as to what is in the best interests of the child, they have little choice but to apply for a resolution from the court.
One such recent case is that of M v H (Private Law Vaccination) [2020] EWFC 93. MacDonald J was asked to rule on whether two children should have the childhood vaccinations included on the NHS vaccination schedule, any future travel vaccinations and the coronavirus vaccination. The mother objected to these, whereas the father wished to have the children vaccinated. MacDonald J stated that it would not be appropriate for him to make an order in respect of the travel vaccines or the COVID-19 vaccine. The court had no indication of any specific vaccine or any planned travel. The judge held it was inappropriate to rule on the provision of what were (at the time of the hearing) purely theoretical travel vaccines. In relation to the COVID-19 vaccine, MacDonald J was at great pains to say that his decision not to rule on this matter was not due to any doubt on behalf of the court as to the efficacy of the vaccine. His reluctance was due purely to the lack of information and official guidance with regards to the mechanics surrounding the delivery of the vaccine to children. He further emphasised this point by stating that he could not foresee a situation where the court would not order that a vaccination against COVID-19 was in the child’s best interests (providing it was approved for use in children and absent any peer-reviewed research indicating the safety of the vaccine was in doubt).
Ultimately, MacDonald J ordered each of the children should be given the vaccines as specified on the NHS vaccination schedule. In his judgment, he addressed existing case law and the mother’s submissions to explain his reasoning. To support her argument, the mother had put before the court material from several online sources, including the views of two doctors who were vocal advocates against vaccination.
MacDonald J cited Re H (A Child: Parental Responsibility: Vaccination) [2020] EWCA Civ 664, [2020] 2 FLR 753, stating that the court is of the opinion that it is generally in the best interests of healthy children and the public good to be vaccinated and are unlikely to conclude that vaccines recommended by Public Health England are not in the child’s best interest in the absence of
MacDonald J found that the mother’s evidence did not reach this standard. He was further guided in this by Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, [2003] 2 FLR 1095, where he specifically referred to Thorpe LJ’s assertion that partisan material created to push forward a specific agenda in relation to vaccinations should not be allowed to influence the decision of the court. In the absence of any credible development in medical science or peer-reviewed research indicating concerns with the safety and/or efficacy of the vaccines in question, MacDonald J had no reason not to find the vaccines would be in the children’s best interests. In this context, he acknowledged that the mother’s views were vehemently expressed, but agreed with the approach in Re H (A Child: Parental Responsibility: Vaccination) that the weight to be attached to these views should be determined by their substance, not the fervency with which they are held. As previously made clear, MacDonald J did not feel the substance of the mother’s views were sufficient to raise concerns as to the safety of vaccination, so he placed modest weight on her objections.
In relation to the mother’s assertion that ordering the children to receive the vaccinations would be a breach of their human rights, MacDonald J was not in agreement. Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190, [2020] 1 FLR 904 endorses the approach to proportionality when considering whether a potential breach of human rights is justified. This includes considering whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right. In this case, MacDonald J was of the opinion that protecting the children and the wider community from the effect of these diseases was sufficiently important to justify the limitation of the children’s rights.
M v H (Private Law Vaccination) is certainly not the first case to ask courts to determine whether a child should be vaccinated and it seems highly unlikely it will be the last, given the novelty of the coronavirus vaccine. Although every case will be determined by its facts, the court is setting a strong precedent that when they are asked to consider whether a child should be vaccinated, in the absence of reliable medical evidence to cast doubt on the safety of the vaccination, they will make an order for the vaccine to go ahead.
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