Covid vaccine and child custody: what to do when you disagree?
With the UK entering the second year of disruptions caused by the Pandemic, NHS is now offering vaccination against COVID-19 for children aged between 12 to 17 years old. As children need parental consent for vaccination, this can cause friction for parents that have opposing views on vaccines in general, or the COVID-19 one specifically.
As a firm, we have seen quite a few of such enquires recently, so hopefully, this blog will help clarify some of the issues surrounding child vaccination.
Is it mandatory to vaccinate my child?
There is no legal obligation to vaccinate your child. NHS is offering vaccination to all children aged between 12 and 17 years old. Just like with any medical treatment, vaccination, including Covid-19 vaccine, also requires parental consent for those younger than 16. Children aged 16 and 17 are considered to have enough mental capacity to make such decisions for themselves. In all cases, it is essential that you speak to suitable healthcare professionals, who are well aware of your child’s medical history, before making a decision about vaccination.
With a lot of misinformation out there about Covid-19 vaccines, often people get confused as to what the best path is, and this can lead to difference in opinion between parents. This is prominent with separated couples that co-parent, yet differences can also arise between couples that are cohabiting.
Can one parent consent to vaccination?
As a parent, you are to make important decisions about your child’s upbringing. Not only you have the obligation to ensure that your child’s day to day needs are met, but you are also called upon to make important decisions in respect of their education, participation in religion and other social activities, what medical treatment they can have and so on.
Legally, for any medical treatment, consent of one person with parental responsibility is sufficient. This means that from the medical professional’s perspective, if only one person with parental responsibility gives consent, the vaccination can go ahead. However, if there is another person with parental responsibility, they have the same rights and obligations as you do, and should be informed and consulted with, when making any important decisions for the child’s upbringing.
What is parental responsibility and who has that?
Parental responsibility is a legal term used to describe the rights and obligations a parent has in respect of their child. Most common and important elements of parental responsibility include:
- Providing a home for your child (this, for instance includes deciding where the child lives)
- Protecting and maintaining your child (ensure they are properly looked after, are adequately fed, cared for etc)
- Choosing and providing education for your child (what schools to attend, how their education should progress etc)
- Naming the child or changing the name
- Looking after their property
- Madding medical decisions for the child
Parental responsibility is different from being a parent. You can be the biological parent of the child and not have the parental responsibility, if for instance it has been terminated to protect the child. Likewise, you can not be related to the child biologically, but have parental responsibility.
As a parent, you have parental responsibility if, you are the biological mother or, in case of the father, he was married to the mother at the time of birth or is on the child’s birth certificate.
Parental responsibility can also be granted by court.
Parental responsibility is not lost by simple fact of separation between parents or even lack of contact. Therefore, you must consult the other person with parental responsibility in all major decisions for the child, including vaccination.
What if the parents disagree on Covid vaccine?
Disagreement about vaccination among parents is not a new phenomenon. For years, with the rise of anti-vaccine movement, we have seen more and more people becoming hesitant to vaccinate their children, against best medical advice. However, with Covid-19 vaccination, there is a new waive of such disagreements.
As with any disagreement that concerns your child, you should attempt to resolve the situation amicably. Talking things through, listening to each other’s concerns, and reaching out to professionals for best available advice always helps. You can also attempt mediation, to try and find a solution.
If all the above fails, you may apply to courts to make a Specific Issue Order, that will, in effect, determine how in that given situation the parental responsibility should be exercised.
What is Specific Issue Order?
Specific Issue Order, as mentioned above, requires the Court to decide on a particular issue that those with parental responsibility are disputing.
In effect, the person seeking Specific Issue Order wishes to undertake a course of action that the other parent is prohibiting. Therefore, if you are wishing for your child to have a medical treatment, such as vaccination, and if the other parent is not allowing it, then you can ask the court to make an order mandating this.
Who can apply for a Prohibited Steps Order or Specific Issue Order?
The following can apply for a Specific Issue Order:
- The child’s parent, guardian, or special guardian.
- A person named as the person with whom the child is to live under a Child Arrangement Order.
- A step-parent who has parental responsibility for the child.
What will the Courts look at when making a Specific Issues Order?
As with all children related matters, the courts are bound by child’s best interest when making a Specific Issue Order. There are a lot of considerations the Court will take into account. These are known as ‘welfare checklist’. For instance, among other factors, the courts will look at:
- What the child’s wishes are (where appropriate).
- The child’s needs (whether physical, emotional or educational).
- Any harm that the child is at risk of suffering or has suffered.
- The likely effect of any change of circumstances that will follow.
- The child’s age, sex and any other relevant characteristic.
In the case of vaccination disputes, as with other medical treatment related issues, the courts will look at the medical advice surrounding the issue.
What have courts said so far about vaccination?
As Covid vaccination is still very new, we do not have conclusive case law in respect of this. However, in the past, the courts have made number of decisions in respect of other vaccinations. The most recent case was from November 2020 [MvH and P and T EWFC93]. The judge issued an Order for the children to be vaccinated according to the NHS vaccine schedule.
By way of background for this case, this was a case brought forward by the father. The couple had separated some time ago and had been in contentious child arrangement process for a while. He had initially applied for MMR vaccine, but later widened the scope of his application to include all vaccines on the NHS schedule at the time. The judge satisfied the application and issued this order. However, the court also made a clarification, that at the time of the Order, it was not appropriate to rule in respect of future travel or Covid related vaccination. The judge further clarified that the reason behind not making an order in respect of future travel vaccines was due to the lack of clarity in respect of the necessity of such order.
As for the covid vaccine, the reason for not including that in Order was, as per the Judge’s comments, due to lack of clarity in respect of the rollout and related issues. The Judge then clarified that in light of existing caselaw on the subject of vaccination, it was difficult to foresee situation where a vaccine approved for use in children would not be endorsed by the courts as being in the best interest of children.
It is, therefore, unlikely that the courts will refuse Specific Issue Orders for Covid-19 vaccination, unless there is very strong medical evidence that goes against it for that particular child.
Having disagreement with your ex-partner about covid vaccine?
If you are unsure on how to resolve an ongoing dispute with the other parent of your child, talk to us. We have a team of friendly child law experts, who can guide you through these issues, with care and expertise. Our aim is to minimise the conflict and try to reach a resolution that works for you and more importantly, your child. Allow us to help you with your child arrangement issues. Call us at 020 3372 5125 or email us at firstname.lastname@example.org.