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Marie Whittaker – Partner in the Family team at Clough & Willis - discusses the growing issue of separated parents who disagree on child COVID-19 vaccines.

Earlier this month, Professor Chris Whitty - the UK’s Chief Medical Officer - recommended a single Pfizer dose for all children aged 12 to 15. Speculation had been rife, and debate before and after the announcement has been fierce. As with adults, having the vaccine will not be compulsory but the real issue for many is parental consent – especially if there is differing views between separated parents. 

Chris Whitty cited the negative impact of prolonged absences in terms of learning, especially in deprived areas, and there is also concern within the government that extended disruption will continue to exacerbate the growing mental health crisis and impact on our young peoples’ life chances.   Although vaccinating children will not stop the spread of COVID in schools, it should help to keep the number of cases lower. My slight worry is that not all parents will be convinced by the disruption argument, and it may actually lead to more not giving consent.   

The vaccine is now mainly being administered in schools by health workers and parents are being asked to provide their consent.  Although parental consent is being requested, a child under 16 who can prove that they have enough intelligence, competence and understand the risks and benefits can request the vaccine or refuse it if they disagree with their parents.  This is known as being “Gillick” competent.  However, it would be most unusual for a child under 13 to be judged Gillick Competent.  Otherwise, someone with parental responsibility can consent for them.  This could be a child’s mother or father; a legally appointed guardian; a person with a Residence or Child Arrangements Order; or a local authority designated to care for a child.

According to Chris Whitty, “in the great majority of cases, children and their parents come to the same decision". However, a very real problem has started to arise for separated parents who have differing views on the issue. In the event of such a disagreement, the starting point is who has parental responsibility for the child and what this permits them to decide on their behalf.  Where more than one person has parental responsibility, each of them may act alone and without the other in meeting that responsibility. 

If there is a dispute between parents, they can apply for something called the Court for a Specific Issue Order.  Back in 2003, the Court decided in a case that neither parent had the right to make a decision alone and that immunisation should only be carried out if the Court determined that this was in the best interests of the child.  This means that if just one person holds parental responsibility, then they can act alone but if two or more hold parental responsibility but cannot reach an agreement and have exhausted all other possible routes, for example - alternative dispute resolution such as family mediation, then the parties have no option but to ask the Court to make a decision on their behalf.  The child’s welfare will be paramount, and a decision should be made based upon what is in the child’s best interests, not the adults’. 

This, of course, has not happened yet, but I do predict that cases like this will come to Court over the coming months. It is very difficult to envisage a case in which a vaccination against COVID-19 is approved for use in children would not be endorsed by the Court as being in the child’s best interests. Save in exceptional circumstances, the Court will not consider that instructing an expert on the efficacy or safety of a particular vaccine is necessary when they have been approved and recommended by the NHS and Public Health England. 

It would also be very difficult for a parent to successfully object to vaccination in accordance with Public Health recommendations.  The Court would consider that the objective of vaccination, which is to protect the child from the consequences of the symptoms and the wider population from the spread, is sufficiently important to justify the limitation of the parents’ fundamental human rights.

The general consensus, and government line, is that disagreements over consent will be quite rare and can be resolved by healthcare staff.  Time will tell but I am not convinced it will be so straightforward.

For further information on any of the above or any other family matter contact Marie Whittaker or Lee Marston for a free, no obligation interview on 0161 764 5266 or via email info@clough-willis.co.uk