The vaccine rollout amongst our adult population has been done quickly and successfully.
It is natural that thoughts have recently turned towards how children can be best protected, and especially as there are concerns among some about the long-term impact and side effects of the vaccine. Some have been reluctant to get the vaccine themselves and subsequently let their children be vaccinated. The law in the UK allows parents to decide whether their children should be vaccinated, but what happens when parents or those with parental responsibility disagree?
Can children get the Covid-19 vaccine?
Whilst it is acknowledged there is an extremely low risk of children becoming seriously ill with Covid-19, questions have been asked over how children can be protected.
After a US clinical trial of the Pfizer vaccine, which included over 2,000 children aged between 12 and 15-years-old, the Commission on Human Medicines concluded that the vaccine ‘benefits outweigh any risks’. Other countries have taken the first step in widening their vaccination programmes to children. In both the US and Canada children started being vaccinated earlier this month, and in Germany vaccination of children aged 12 and above began on the 7th June 2021.
In the UK our vaccination programme has not yet been extended to encompass children and those under the age of 18-years-old are not being routinely vaccinated. However, at the beginning of June the UK approved the Pfizer vaccine for 12 to 15-year-olds which shows the tide is turning in favour of including children within our vaccination programme. Clinical trials are currently underway to test various other vaccines on children, with a view to potentially rolling out other viable vaccines towards the end of this year.
Who gives consent to a child’s vaccination?
It is likely that Covid-19 vaccines will become available to children and, whilst vaccination is not compulsory, the appropriate consent will need to be obtained for those who are eligible.
For children aged 16 and 17 there is a presumption that they have capacity to consent to their own medical treatment, and this includes the Covid-19 vaccine.
For children under the age of 16 the position is different as there is no presumption of capacity to consent, instead they can be assessed to have Gillick competence and, if found to have such competence, will be able to decide for themselves whether or not to consent to receiving the Covid-19 vaccine. The child’s age, understanding of the proposed treatment (including any associated benefits and risks) and their ability to explain their reasoning will all be part of the test for Gillick competency. If a child is not found to be Gillick competent the consent of a person with parental responsibility will be required.
Opinions differ about the benefits and risks of vaccinations and it is now time for individuals with parental responsibility to think about whether their child should be immunised against Covid-19 in consultation with one another by sharing their thoughts and concerns.
What if parents disagree about their child being vaccinated?
Disputes between parents are difficult. But fortunately, the law is reasonably clear. The Green Book outlines vaccination procedure for healthcare professionals and details what should happen where parents disagree.
"although consent of one person with parental responsibility for a child is usually sufficient, if one parent agrees to immunisation but the other disagrees, the immunisation should not be carried out unless both parents can agree to the immunisation or there is a specific court approval that the immunisation is in the best interests of the child".
It is always best to speak to one another about your concerns and see if you can come to an agreement, but if this is not possible and you feel strongly about your child being vaccinated you may have to apply to the court under section 8 of the Children Act 1989 for a special issue order. It will then be the job of the court to decide how to resolve the dispute. As always, with disputes involving children, the child's overall welfare will be of paramount concern.
Case example
The case of M v H (Private Law: Vaccination) [2020] involved a father seeking a Specific Issue Order that his two children be vaccinated in accordance with the NHS vaccination schedule in relation to MMR, but later asked this to include future vaccines such as those against Covid-19. The mother was against the children receiving vaccinations. Whilst the Judge granted the Order in respect of the MMR vaccine, he deferred his decision in relation to the Covid-19 vaccine. The Judge reiterated the remarks of the Court of Appeal in Re H (A Child)(Parental Responsibility: Vaccination) [2020] noting 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’. If a credible scientific discovery or peer-reviewed research indicated significant concern for the safety of a vaccine, or if there was evidence in relation to a particular child to show a vaccine would not be in their best interests, then the Court would make a decision in light of those findings.
Ultimately, it is perhaps still too early to say with any certainty what the predominant view of the Courts will be when it comes to parental disagreement over child vaccination against Covid-19. It appears the Court will defer reaching a decision until all the relevant facts are at hand, namely whether and when the child will receive a vaccine and what the official guidance will be on administering the vaccine to children. If the scientific evidence states that it is generally in the best interests of a healthy child to receive a vaccination then the Court will likely rule in favour.
Lateral flow tests fo children
Testing is a voluntary process, albeit widely encouraged. In the UK primary school children do not need to undergo lateral flow testing, although if a child under 11 years old shows signs of Covid-19 symptoms then they should be tested provided they are accompanied by a parent or guardian. Lateral flow tests can be used by anyone aged 11 or older. Current guidance is for all secondary aged pupils and school students to take a test twice a week, ensuring the tests are 3 or 4 days apart.
How can Tozers help?
For further information about any part of this article, or to talk to one of our dedicated Family team, visit their hub page.
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