Female doctor giving injection to a little girl at medical office
Now that we are in lockdown 3, many separated parents have managed to establish a routine and ground rules to enable their children to move between their two homes, perhaps even between two countries. However, the roll out of the vaccine brings a potential new area of dispute, which the family court dealt with recently in the case of M v H and P and T  EWFC 93.
In this article we look at this case and consider the court’s approach where one parent wants their child to be vaccinated but the other parent does not.
Parental responsibility, specific issue orders and welfare checklist
For parents to have authority to make decisions in respect of a child, for example choice of school or medical treatment, they must have ‘parental responsibility’ for that child. The definition of parental responsibility is set out at paragraph 3 of the Children Act 1989 and, as Mr Justice MacDonald reminds us in M v H and P and T, concerns an adult’s responsibility to meet the welfare needs of his or her child and is exercised for the child’s benefit and not that of the adult.
If parents cannot agree on an important issue in relation to the child’s welfare or upbringing they can apply to the court for a specific issue order under section 8 of the Children Act 1989.
When the court makes any order for a child, the child’s welfare is the court’s paramount consideration. The court has particular regard to the factors at section s1 (3) of the Children Act 1989, the welfare checklist, namely:
– The wishes of the child taking into account age and understanding;
– Physical, emotional and educational needs;
– The likely effect of any change in circumstances;
– Age, sex and background;
– Any harm which the child has suffered or is at risk of suffering; and
– The range of powers available to the court.
M v H and P and T
In M v H and P and T  EWFC 93, which was heard on 10 December 2020 with judgment handed down on 15 December 2020, Mr Justice MacDonald considered a dispute between a mother and father over vaccinating the parties’ two children. The mother objected to the children being given NHS routine childhood vaccinations and the father in turn applied for a specific issue order. The father’s application initially concerned the MMR vaccine and ahead of the hearing the application was widened to include all NHS vaccines and the future Covid-19 vaccine.
In this case both parents had parental responsibility for the children but disagreed about the best course of action when it came to vaccination. Section 2(7) of the Children Act 1989 provides where more than one person has parental responsibility each of them can act alone without the other. However this section does not give one party priority over the other in exercising their parental responsibility.
In M v H and P and T Mr Justice MacDonald set out the law regarding the exercise of parental responsibility in respect of vaccines. He considered the case of Re H (A Child: Parental Responsibility: Vaccination)  EWCA Civ 664 in which the Court of Appeal undertook a careful review of the issues relating to parental responsibility and vaccination. In that case the Court of Appeal found that a court would be unlikely to conclude vaccines recommended by Public Health England (PHE) and set out by the NHS as routine immunisation would not be in a child’s best interest. The case of Re H concerned public law proceedings but within the case the Court of Appeal also reviewed the position in private law proceedings. The Court of Appeal explained that the only reason for a vaccine to not be in a child’s best interests is:
1. There is a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy or safety of a vaccine;
2. A well evidenced medical contraindication specific to the child.
In M v H and P and T the mother put forward various online sources to support her case. Her objections were broken down into the following:
1. Vaccination is not immunisation;
2. A vaccination does not prevent a person from ‘carrying’ the disease;
3. Her children had strong immune systems therefore if they contracted a disease they would not suffer complications;
4. Further research was required into the question of efficacy and probity of vaccinations for children generally;
5. PHE recommendations are falling behind developing science;
6. The side effects of a vaccine are more detrimental to children than the effect of the disease itself ;
7. Her children should be tested for ‘natural immunity’ before the court authorises vaccination of the children; and
8. Vaccinations in England are not compulsory therefore it was a breach of the children’s rights under Article 8 (right to respect for private and family life) of the European Convention of Human Rights (ECHR).
In M v H and P and T a guardian had been appointed for the children who recommended vaccination in accordance with the NHS schedule of vaccinations. Mr Justice MacDonald found the material put forward by the mother was not sufficient evidence to demonstrate a concern for the efficacy and/or safety of the vaccines. In terms of the mother’s assertion an order would infringe on the children’s Article 8 rights MacDonald J found that requiring the child to have a vaccination struck a fair balance between the child’s rights and interests of the community. MacDonald J found that neither of the exceptions in Re H applied and therefore it was in the children’s best interests to have childhood vaccines specified on the NHS vaccination schedule.
Mr Justice MacDonald declined to rule on the Covid-19 vaccine as the vaccine is not yet included on the NHS childhood vaccination; however he did say as long as the vaccination is approved for use in children then the court would likely consider a Covid-19 vaccine to be in a child’s best interest.
The current government guidance is children are not to be vaccinated against Covid-19 as children have a lower risk of being affected by Covid-19 and the current approved vaccines have not been tested on children. The Joint Committee on Vaccination and Immunisation (JCVI) advises only children with a very high risk of exposure and serious outcomes should be offered a vaccination.
At the moment as children are not due to be vaccinated against Covid-19 then following M v H and P and T we can assume that the courts will not be making orders on this issue for the time being. However in the event that the Covid-19 vaccination is approved for children and added to the NHS list of childhood vaccinations it is most likely that the court will grant an application for a specific issue order for a child to have the Covid-19 vaccine, unless the test in Re H above is met, namely there is a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy or safety of a vaccine and/or a well evidenced medical contraindication specific to the child.
Written by Charlotte Stringer, paralegal in the Family Team at Kingsley Napley.