Should we immunise our child and what if we can’t agree?

For many new parents the decision as to whether to vaccinate their child against common childhood illnesses are something they consider carefully together. In England and Wales childhood vaccinations are not compulsory, as they are in a number of other countries, and so the parents have a choice to make.

Legally, decisions in relation to a child’s health and medical treatment are matters of parental responsibility. Parental responsibility is defined in the Children Act 1989 as all of the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and their property. It describes the adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of a child and not the adult. It includes the right and responsibility to make important decisions in relation to the child’s life such as in relation to their education, naming the child and agreeing to any change of name and agreeing to the child’s medical treatment. All mothers and most fathers, if they are married to the mother or named on the child’s birth certificate, have parental responsibility.

Where the parents are separated and cannot agree in relation to a matter of parental responsibility then either of them may make an application to the court for a Specific Issue Order to determine the issue. In certain circumstances, for example where urgent medical treatment is required, others such as the NHS can bring proceedings in relation to the child to ask the court to authorise a particular course of treatment or to determine a disagreement between the parents.

There have been a number of anti - vaccine scares over the years with concerns about the side effects of particular vaccines, most recently and well known in respect of the Measles Mumps and Rubella (MMR) vaccine and a suggested link to autism. NHS guidance at www.nhs.uk/conditions/vaccinations/why-vaccination-is-safe-and-important carries the warning that anti - vaccine stories are spread online through social media and may not be based on scientific evidence which could put your child at risk. It goes on to state that measles and mumps has started to appear again in England after concerns about the MMR vaccine and cases of both have doubled between 2016 and 2018.

In the recent case of Re: B (A Child: Immunisation) [2018] EW FC 56 the court was asked to grant permission to immunise a 5 year old girl, B. Prior to her parents separating B had received all the recommended vaccinations. Under the recommendations of Public Health England she was now overdue three further vaccinations; the combined diphtheria / tetanus / whooping cough / polio immunisation; the combined MMR vaccine and the flu vaccine by nasal spray. B’s mother wanted the immunisations to take place. B’s father objected. The court joined the child as a party to the proceedings and appointed a CAFCASS (Children and Family Court Advisory and Support Service) as a Guardian for the child. The Guardian supported the mother’s position.

The court granted permission for the joint instruction of a medical expert witness who gave detailed evidence as to the nature of the diseases that the immunisation protected against, the composition of the various vaccines and known side effects. The expert stated that no vaccination is 100% risk free but that the purpose of vaccinations are two fold; firstly, to protect the individual but also secondly, if the uptake of the vaccine is high enough across the population as a whole then the transition of the disease is interrupted. The uptake necessary to achieve this depends on the disease and other factors but it is usually between 80 and 95%.

The court noted that the question it had to determine related to the upbringing of a child and function of a parent’s parental responsibility and that under section 1(1) of the Children Act 1989 the child’s welfare must be the court’s paramount consideration. The court must also have regard to the factors set out in what is commonly known as the welfare checklist at s.1.(3) namely:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in his circumstances;
  4. the child’s age, sex, background and any characteristics which the court considers relevant;
  5. any harm which the has child has suffered or is at risk of suffering;
  6. how capable each of the child’s parents is, and any other person in relation to whom the court considers the question to be relevant, of meeting the child’s needs;
  7. the range of powers available to the court under this Act in the proceedings in question.

This is the approach the court must take in respect of any application concerning the welfare of a child.

In addition, the court noted that for it to determine an issue because the parents are unable to make that decision for themselves is an interference with their right to respect for their private and family life and as such article 8 of the European Convention on Human Rights is engaged. Interference with that right is only permissible if it is necessary in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.

The court determined that it was in the child’s best interests that she should receive the vaccines recommended by the routine immunisation schedule for a child of her age. The court made a declaration to that effect and a Specific Issue Order.

The court noted that this was now the sixth occasion where it had been asked to determine whether a child should be vaccinated in similar circumstances and that on each occasion the court had concluded that a child should receive the recommended vaccine, except in one case which related to a much older child and a significantly less common vaccine with particular risks. The Judge commented that “with respect to the vaccines with which I am concerned, in the absence of new peer reviewed research evidence indicating significant concern for the ….. and / or safety of one of those vaccines, it is difficult to see how a challenge based on ……or safety would be likely to succeed”.

For advice in relation to any issues relating to parental responsibility, or other arrangements for the care of children, contact a member of the Rollits' Family Law team on 01482 323239 or 01904 625790.

Posted on: 20/02/2020

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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