‘Vaccination’ is a word that we are hearing on an almost daily basis at the moment, and whilst the current Government guidance suggests that children under 16 should not receive the COVID-19 vaccine, this may change as more is known about the vaccine.
The question of what happens when parents disagree on whether a child should receive a vaccination, not just a COVID-19 vaccination, but any vaccination, such as MMR, Meningitis, or the 6-in-1 is a complicated one.
A number of years ago, I personally represented a mother in court proceedings where the father opposed their child having the MMR vaccination. After hearing evidence, including reading medical reports and advice, the court directed the child should be vaccinated, determining this to be what was in the child’s best interests.
But a recent case as ignited this timely topic further…
On 10th December 2020, the court handed down Judgement in the case of M v H (Private Law Vaccination)  EWFC 93,  All ER (D) 115 (Dec). The court determined whether or not two children should receive the vaccinations as set out in the NHS vaccination schedule.
The starting point is that everyone who holds ‘parental responsibility’ for a child should be consulted and consent to children receiving any vaccination. In this matter, the short background is that the parents separated some time ago, but had two children from their relationship. The father’s initial application sought a Specific Issue Order, requiring the children have the MMR vaccine. However, this was later extended to include any further childhood vaccines as per the NHS schedule, any vaccinations that may be required before foreign travel and also any vaccination against COVID-19.
The mother opposed this application. The Judge hearing the matter, Mr. Justice MacDonald, decided he would limit his Judgement to only those vaccinations on the NHS schedule. He stated it would not be appropriate to determine at present vaccinations for foreign travel, which may or may not be required in the future, and likewise the COVID-19 vaccination. He found there was no evidence before the court on these vaccinations, and therefore it would not be appropriate for him to make a decision on this.
When giving his Judgement in relation to the COVID-19 vaccination, Mr. Justice MacDonald did however state in paragraph 4 of his Judgement: “I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.”
The parents were going through private Children Act proceedings regarding contact arrangements, however on the recommendations of the children’s guardian, it was agreed this issue should be dealt with separately. The mother represented herself as a litigant in person, however it should be noted she did apply for an adjournment to seek legal representation. This was refused by the Judge, who said he did not feel the mother would be prejudiced by matters proceedings without her being legally represented, and remarked how the two statements she had filed demonstrated her understanding of the issues and ability to argue and put forward her case and position.
This case was decided without any expert evidence, the court relying on the statements of the parties only, and having nothing from a jointly instructed medical professional.
The mother was opposing the children having their childhood vaccinations, as set out in the NHS schedule, stating this was based on six years of research and referring to an article she had found suggesting a link between the MMR vaccine and autism. The mother directed the court to a number of articles and papers, including an American Paediatrician, Larry Palevsky, and American nephrologist, Dr Suzanne Humphries. It was commented by the Judge that both of these were very vocal advocates against vaccinations. The mother suggested it was not in the children’s best interests to have the vaccinations, suggesting this put them at risk of further health issues, and children whom had not been vaccinated had a better natural immunity to illnesses.
The mother put forward nine arguments to her case:
- Referencing the comments of Lady Justice King in the case of Re: H (A Child: Parental Responsibility; Vaccination) that, “vaccination is not immunisation”. She submitted that the administration of a vaccination is to help the body develop an immune system to protect from the disease, and is therefore not 100% effective. The mother’s submissions were that in between 2-10% of cases a vaccination was ineffective;
- The vaccination did not prevent a party carrying the disease;
- That the diseases which the children were being vaccinated against are generally mild and cause limited difficulties for healthy, well-nourished children;
- That further investigation was required into the ingredients in the vaccinations and, listing the ingredients in the MMR vaccine, the mother stated she objected to these ingredients being injected into her children;
- The recommendation by Public Health England that children should be vaccinated was out of date, and had fallen behind further research and developments and advances in science, which were suggesting the vaccines caused long term health issues in children;
- The vaccines cause damage to the children, with the side effects being more detrimental to the children than the benefits. The mother suggested there have been only two deaths of children under 10 from measles in the last 10 years whereas, by comparison, a far greater number of claims have been made for damages against the UK Vaccine Damages Programme Unit;
- That the children should be tested for ‘natural immunity’ before being given any vaccinations;
- Any order forcing her to have the children vaccinated would be an unnecessary and disproportionate breach of article 8 of the Human Rights Act, right to a family life, and asserting forcing the children to be vaccinated would constitute an assault or grievous bodily harm;
- This case can be distinguished from previous authorities where vaccinations have been directed on the grounds that the previous case referenced by the Judge Re: H (A Child: Parental Responsibility: Vaccination) was a public law case. The mother submitted in this case there were wider welfare concerns, which did not apply in this matter.
The Children’s Guardian supported the father’s position that the children be vaccinated, stated this was in accordance with the recommendations of Public Health England and NHS Guidance.
In giving his Judgement, Mr Justice MacDonald considered the Guidance on Parental Responsibility and where those holding parental responsibility could not agree on the immunisation of a child, this should be determined by the court.
Mr Justice MacDonald made reference in his Judgement to the case of Re H (A Child: Parental Responsibility: Vaccination), stating the Court of Appeal undertook “a comprehensive review of this area” and reached the following conclusions:
- It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated.
- Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good.
- All the evidence presently available supports the Public Health England advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole.
- The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: ‘Immunisation against infectious disease’, published in 2013 and updated since.
- The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.
- The clarity regarding the evidence base, with respect to MMR and the other vaccinations that are habitually given to children, should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child's own circumstances throw up any contra-indications.
- Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects.
- Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child's welfare.
- This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engage
Mr Justice MacDonald held, “With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”
This case reaffirmed the previous Judgement and guidance of Re H (A Child: Parental Responsibility: Vaccination) which still applies in cases where there is a dispute about a child being vaccinated. The court confirmed there is nothing, either in this jurisdiction or abroad that goes against the recommendations of Public Health England that it is in the best interests for children to be vaccinated.
Although the Judge was very careful to try and avoid setting any precedent in relation to any possible COVID-19 vaccination, due to the relevant timing of this Judgement, this case may have set a precedent and guidance that could prove highly relevant should it be suggested or offered that children be vaccinated against COVID-19 and this form part of the NHS’s schedule and recommendations. If this was to be recommended by the NHS it may appear likely that the court would find it difficult to direct children should not be vaccinated.
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