The Telegraph has reported that, subject to ongoing trials, children may be offered vaccination against Covid-19 as early as later this year.

The issue as to whether or not to accept a vaccine has been a sensitive topic for many adults and is likely to be even more emotive when it comes to children. While many parents will welcome the opportunity to have their children vaccinated, others may be wary of the potential or perceived risks. It is also likely that many parents will not agree as to whether their children should be vaccinated. If these issues cannot be resolved between the parents (or perhaps through alternative forms of dispute resolution, like mediation) they will need to be determined by the Family Court.

So how would a family judge approach a situation like this?

Where there is a disagreement in relation to medical treatment or vaccinations for children an application can be made to the Family Court for a specific issue order under section 8 of the Children Act 1989. When the Court makes any order in respect of a child, the child’s welfare is the Court’s paramount consideration. The Court has particular regard to the factors, referred to in practice as "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.

Pursuant to the 1989 Act the Court should not make a specific issue order unless doing so would be better for the child than making no order at all.

Recent case law in this area sets out the following guiding principles when it comes to vaccinations:

i) 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.

ii) 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.

iii) 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 of both children and society as a whole.

iv) 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.

v) 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.

vi) 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 Family Procedure Rule 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.

vii) 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.

viii) 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.

ix) This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged when considering the best interests of the child with respect to the question of vaccination.

In a reported case dealing with this specific topic (though prior to the wide roll-out of the government's vaccination programme and before any serious conversations were being had about whether it would be offered to children), the judge did not feel able to make a specific issue order in relation to the Covid-19 vaccination. He made it very clear that this had nothing to do with his own views (or indeed anyone else's view) about the nature of the vaccine but simply that it was too early in the Government's vaccination programme to tell whether it would ever be offered to children. He did note that, if the vaccine were to be added to the NHS schedule, it would be difficult to envisage a situation where it would not be endorsed by the Court unless there was strong evidence negating its efficacy or safety or if there were specific concerns relating to the health of the child or children to whom the application related. Therefore, it appears that parents seeking to obtain an order in favour of established vaccination programmes are likely to be successful save for in limited circumstances. They may need to obtain medical evidence as to why such vaccines ought to be administered (or not) and why it would be in the best interests of the children (or not). In all such cases the Court must have sufficient detail to consider that an order should be made and is likely to be wary of an application that is too wide. For novel diseases, it is unlikely that the Court will make an order in circumstances where there is no established vaccination programme or absent any expert evidence as to why the subjects of the application particularly need the vaccine. 

It remains to be seen how these issues are determined once clinical trials have been concluded and the Government set out their advice in respect of this particular disease.