COVID-19 Vaccines & Children

As we welcome the end of the pandemic, fewer new infections and an uptake in adult vaccinations, the government has introduced COVID-19 vaccinations for school children, which started with the 16- to 17-year-olds, the 12- to 15-year-olds and now the 5-plus age group. But whilst the COVID-19 vaccination is recommended by the Joint Committee on Vaccination and Immunisation (JCVI), do parents agree?

In the age groups of 16 to 17 and 12 to 15, the issue of consent to this vaccine remains important and parents are often left confused over their legal position on this issue. The issue becomes even more contentious when one parent who has parental responsibility (PR) does not agree for their child to have the vaccination. The cases of (Re H (A child) (Parental Responsibility: Vaccinations) [2020] EWCA Civ 664) and (M v H (Private law Vaccinations) [2020] EWFC 93), whilst decided prior to the government’s announcement about vaccinating children, encompasses points in relation to the court’s consideration when deciding whether to agree to a vaccine. More information on this particular case can be found here.

Can My Child Decide?

In a situation where a child wants, or refuses, to have the COVID-19 vaccination and this is contrary to the decision of at least one of their parents/guardians, then the issue of Gillick competence would be relevant. Munby P clarified in the case of Re D (A Child) [2017] EWCA Civ 1695 that the relevant case law, legislation and international treaties do not prescribe 16 as the age when a child is assumed to have the competence or capacity to make decisions independent of those who have PR over them. In fact, the age at which a child has the capacity to decide a particular issue varies according to their individual characteristics, maturity and understanding, (Gillick v West Norfolk and Wisbech Area Health Authority and another [1986] AC 112), which still remains “good law”.

There is no set of defined questions to assess Gillick competency. Professionals need to consider several things when assessing a child’s capacity to consent, including:

• the child’s age, maturity and mental capacity
• their understanding of the issue and what it involves – including advantages, disadvantages and potential long-term impact
• their understanding of the risks, implications and consequences that may arise from their decision
• how well they understand any advice or information they have been given
• their understanding of any alternative options, if available
• their ability to explain a rationale around their reasoning and decision making.

The case establishes the benchmark as being, when in the opinion of relevant health professionals a child, at any age, has the capacity to decide whether to consent to their vaccination, a parent/guardian’s consent (or refusal) cannot override the child’s decision. The position was reaffirmed recently by Lieven J, who stated that if a child, at any age, does not have the requisite capacity, a parent/guardian with PR can consent to the vaccine on their behalf, or seek a specific issue order from the court if there is no agreement between those who have PR.

The Court’s Approach to COVID-19 Vaccines

Whilst there have not yet been any reported private law cases dealing with this specific issue, the case of (M v H) provides a helpful summary of the factors that the court looks at when addressing the issue of childhood vaccinations. The only difference between the findings in this case and that of any future applications for the COVID-19 vaccine, is that the COVID-19 vaccine does not form part of the NHS vaccination schedule. To complicate matters, the JCVI’s advice is limited in respect of the medical benefit of the vaccine for children and each decision will therefore need to be made on a case-by-case basis and in consideration of what is best for the child in question.

Practicalities:

1. The NHS has confirmed that most children between 12 and 15 will be vaccinated in school and those with PR will receive information.
2. For children aged between 12 and 15, consent will be sought by the local School Age Immunisation Service (SAIS) provider from those with PR.
3. All parents or those with PR are asked for consent and will usually make the decision, jointly with their children.
4. In secondary schools, some older children may be sufficiently mature to provide their own consent, for example when the consent form has not been returned but the child wishes to have the vaccine on the specified day.
5. In the case of separated parents, schools should ensure that the information leaflet is provided to both parents. Otherwise, if one parent is not notified about when the vaccinations are due to take place and asked to provide their consent, it could lead to a complaint against the school if the other parent has consented and the child receives the vaccine against the first one’s wishes. Where there are differences in opinion, this will be for the SAIS to deal with, not the school.

Ultimately where there is no agreement between the parents, they may have no choice but to make a Specific Issue application to the Court. Whilst the parents’ views will be taken into account by the Court, the wishes and feelings of the children will also be considered. If the child is not Gillick competent, the Court will make a decision based on what is in the child’s best interests and not on the strength of the parents’ particular view.

It does, however, seem unlikely that in the absence of specific evidence that indicates receiving the COVID-19 vaccine would not be in the child’s best interest (in the event they had a medical condition), or a further development in medical science, a specific issue would be made, and the child would be vaccinated.

Speak to our Family Law experts

For more information about the specific applications that can be made to the Court in relation to children matters, please contact our Children Team on 01895 207 882 or email Sonal at sonal.parekh@ibblaw.co.uk.