There is now widespread news that a vaccination has been successfully developed for Covid-19 by Pfizer and BioNTech. Questions are being asked about when the vaccination will be available, who will be given the vaccination first and are there any side effects.
There has long been debate about vaccinations and their potential side effects, and the UK government has generally resisted calls to make vaccinations compulsory. The BBC reported in September 2019, that for the fifth year in a row the uptake of the MMR has dropped. It is worth noting that whilst the uptake remains above 90%, which at first glance may appear high, it is below the level recommended by the World Health Organisation for “herd immunity”.
A number of times over the past year it has been asked, is now the time to move to mandatory vaccinations? The answer has routinely been “there is no evidence that compulsion would lead to increased uptake” (see Baroness Blackwood, House of Lords Debates 1 April 2019, and Mayor of London Saddiq Khan, London Assembly 21 October 2019).
Though Public Law England provides a recommended schedule of vaccinations in the UK for children and adults, there are currently no compulsory or mandatory vaccinations in the UK. This has not always been the case. In 1853, the Vaccination Act, made it compulsory for all children born after 1 April 1853 to be vaccinated against smallpox during the first three months of their life. This ended in 1948, and the vaccination was discontinued in 1971. By 1980, the World Health Organisation had declared that smallpox had been eradicated. A disease that reportedly killed 320,000 in London alone.
In August 2020, the government confirmed that any covid-19 vaccination would not be mandatory (see Jo Churchill, House of Lords Debates 5 August 2020).
However, given the extreme and exceptional circumstances that the world now finds itself in during the current covid-19 pandemic, the potential damage to the economy and the calls for restrictions to end, it is unclear whether the new vaccination will result in renewed consideration on whether there is any vaccination that should be made mandatory in the UK. Something, that the current Health Secretary Matt Hancock MP (prior to the covid-19 pandemic) has said he is "considering seriously" and:
"So I think there’s a very strong argument for having compulsory vaccinations for children when they go to school, because otherwise they’re putting other children at risk. Then I’d want to make it very easy if the children do arrive at school not vaccinated, simply to get vaccinated, and make it the norm. But I think there’s a very strong argument for movement to compulsory vaccination, and I think the public would back us."
The law in the UK, as it stands, allows for individuals to decide when and if to vaccinate and in respect of children, it is a matter for those with parental responsibility. But what happens when those with parental responsibility disagree?
When parents disagree
The Green Book, which details vaccination procedure for health professionals, sets out at chapter 2:
"although consent of one person with parental responsibility for a child is usually sufficient, if one parent agrees to immunisation but the other disagrees, the immunisation should not be carried out unless both parents can agree to the immunisation or there is a specific court approval that the immunisation is in the best interests of the child".
When parents disagree about the vaccination of a child, either parent can make an application to the court for a special issue order under section 8 of the Children Act 1989. The court is then tasked with resolving the dispute. The child's welfare is the paramount concern and the court will consider the welfare checklist set out in section 1 of the Act.
In F v F  EWHC 2683 (Fam), the parents disagreed on whether their two children, aged 11 and 15, should have the MMR vaccination. The children also objected to the vaccination. The parents had previously agreed that the children should not have the vaccination based on the research reported by Dr Wakefield connecting the MMR with autism. Following, the retraction of the paper, the Father became increasingly concerned that the children had not been vaccinated. The Cafcass Officer raised concerns that the children did not have an appreciation of all the benefits and risks and therefore advised caution before attaching sufficient weight to their wishes and feelings. She was of the view that the children were probably influenced by the Mother's views and her anxiety. Mrs Justice Theis did take into consideration the children's wishes and feelings, but concluded on balance that it was in the interests of both children to receive the vaccination and made a declaration as such. The court noted that it would also be helpful for the children to have a meeting with a paediatrician who has expertise in vaccinations to answer questions the children may have to enable the children to have a more balanced picture about the risks.
In Re B (A Child: Immunisation)  EWFC 56, the parents disagreed on whether a child should continue to receive vaccinations. Submissions were made on behalf of one parent that included the proposed vaccinations would put the child’s health at greater risk than necessary and it is not possible to have confidence in the safety of vaccinations routinely given to children. Further, where the parents disagree on a child being vaccinated that the status quo should be preserved. The court considered expert evidence from a Consultant Paediatrician and concluded that it was in the child’s best interests to receive vaccinations. A specific issue order was made.
In Re H (A Child) (Parental Responsibility: Vaccination)  EWCA Civ 664, King LJ confirmed that where parents disagree, the appropriate resolution is through the application for a specific issue order application.
When parents and the local authority disagree
Section 33 of the Children Act 1989 provides that local authorities who hold an interim care order or care order may take actions that they think are necessary to safeguard or promote the welfare of the child.
In London Borough of Barnet v AL and others  EWHC 125 (Fam), Mr Justice MacDonald held:
"Given the gravity of the issue in dispute, it is not appropriate for the local authority to simply give its consent to immunisation pursuant to section 33 of the Children Act 1989 on the basis of its shared parental responsibility under an interim care order."
The expectation from this case was that where there was disagreement between the local authority and the parents, the local authority would make an application for a declaration under the inherent jurisdiction of the High Court.
More recently, Mr Justice Hayden moved away from this position in London Borough of Tower Hamlets v M and others  EWHC 220 (Fam):
"Indeed it strikes me as disproportionate to expect a local authority to be required to apply to a High Court Judge to initiate proceedings, the result of which has been in every reported case to authorise vaccination."
In Tower Hamlets, Hayden J held that it is for the local authority to give notice to parents about a proposed vaccination. Then, it is for the parents to express their objection and make an application for a declaration that the vaccination would be unlawful. The onus, following Tower Hamlets, is now on the parents.
In Re H (A Child) (Parental Responsibility: Vaccination)  EWCA Civ 664, the Court of Appeal upheld the decision of Hayden J. The court considered that routine vaccination is not a serious or grave issue that requires a LA to seek the court's approval whenever a parent objects. When the local authority is considering whether a child should be vaccinated, its decision must be based on the child's welfare and the parents' view should be considered. The weight given to a parent's view is on the substance of that view, not on how strongly held it is. The court is clear that it should be assumed that vaccinations recommended by Public Health England will benefit a child.
Local Authorities should be very wary of decisions around vaccinations, given the conflict in judgements from the High Court and should note that in Tower Hamlets a care order had already been made, but in Barnet, the child was the subject of an interim care order only.
Local Authorities should ensure that when they notify parents about proposals for vaccinations, sufficient time should be given to the parents to object and parents should be advised to seek legal advice if they do object. Where proceedings are ongoing, it is appropriate for the issue to be raised within the proceedings, to ensure that all parties are alive to the issue.
The Public Health (Control of Disease) Act 1984, which applies to England and Wales gives the government powers to prevent, control or mitigate the spread of infection or contamination. It is explicitly stated in section 45E that regulations cannot require a person to undertake medical treatment. The Act specifically includes vaccination as an example of medical treatment. The Coronavirus Act 2020 extended this prohibition to Scotland and Northern Ireland. Should the government decide that any vaccination is to be made mandatory, including in the case of covid-19, a new Act must be made by Parliament.
For now, the law remains as above:
The decision on whether a child should be vaccinated, remains a matter to be determined by those with parental responsibility. When those with parental responsibility disagree, the primary consideration of the courts is the welfare of the child.
Where parents disagree on whether a child should be given a vaccination, a parent may apply to the court for a specific issue order under section 8 of the Children Act 1989.
Where a child is looked after, a local authority should put parents on notice of any proposals to vaccinate the child and give time for parents to object. A parent may then apply to the court for a declaration under the inherent jurisdiction of the High Court to prevent a vaccination.
All parties should be aware that the courts have tended to determine vaccinations to be in the child’s best interests, even when a child themselves has objected. In fact, in the last 17 years, it is in only one of the reported cases that a court decided that a child should not receive one of the proposed vaccinations due to the child's age and medical history which meant that some of the vaccinations were on balance not in the child's welfare interests (Re C & F (Children)  EWHC 1376 (Fam)).
Sophia Stapleton is a barrister at 2 Dr Johnson's Buildings specialising in family, criminal and education law.