According to recent reports, children could soon be in-line to be vaccinated against COVID-19, with clinical trials already underway to test the safety and efficacy of the vaccine in younger age groups. Subject to being given the medical green light, the government is then likely to roll out an under-18’s vaccination programme within a matter of weeks. What then does this mean for the child(ren) of separated parents and where the decision-making lies within this process? 

For parents with a shared view on whether or not to have their child(ren) vaccinated, any potential dispute is likely to be limited to who runs them to their appointment or cares for them afterwards if they’re feeling unwell. If, on the other hand, parents have completely opposing views on vaccination against COVID-19, with one parent wanting to go ahead and the other strongly disagreeing, the matter may boil down to who has parental responsibility or, where both have parental responsibility, an order of the court.

Parental responsibility is a legal concept relating to the rights and responsibilities over a child. It is defined by section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child". Even though the statutory definition lacks detail, it clearly confers a legal status entitling the parent or holder to have a say in important decisions about a child’s upbringing. This includes, amongst other things, what medical treatment the child should receive.

 Not all parents are automatically entitled to parental responsibility. In circumstances where only one parent has parental responsibility but is in disagreement with the other parent over vaccination, the parent with responsibility has the deciding opinion. Here, the other parent would need to make an application to the court if they wanted to intervene.

Equally, in cases where both parents have parental responsibility for the child and agreement cannot be reached as to whether the child should receive the vaccine, the parents will need to make an application under section 8 of the 1989 Act for either of the following:

•   A Specific Issue Order: this determines a parenting issue that is in dispute in connection with any given aspect of parental responsibility for a child;

•   A Prohibited Steps Order: this prevents a person with parental responsibility from taking a step in relation to a child, for example, to stop a vaccination from being administered.

In these circumstances the court will make a decision on behalf of the parties based on what is considered in all the circumstances to be in the best interests of the child. That said, in the recent decision in M v H ( private law vaccination) [2020] EWFC 93 it was held that children should be vaccinated in-line with NHS vaccination schedules. 

That decision directly concerned the MMR vaccine. Still, the court did go on to say that it would be 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. As such, absent a well-evidenced contraindication specific to the child in question, it is possible that parents may find themselves being forced to submit their child(ren) for vaccination on order of the court.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.