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Vaccinations have been a huge topic in the media since the COVID-19 vaccine roll-out began in December 2020. With all UK adults now having had the opportunity to receive both vaccinations and a number currently receiving booster jabs, the discussion has shifted to the issue of vaccinating children, especially as the UK chief medical officers have recommended that all children aged 12-15 years should receive the COVID-19 vaccine. However, what happens if you and your ex-partner disagree on whether to vaccinate your children?

Who Makes the Decision?

The ability for children to make medical decisions depends firstly upon their age (anyone under the age of 18 is defined as a child in this context) and secondly on whether they have the capacity to consent to the receipt of medical treatment.

In most instances, children under the age of 16 do not have the presumption of the capacity to consent. This means that for children under the age of 16, those with parental responsibility will make the decision regarding the medical treatment of the child.

What if There is a Disagreement?

It is common practice that in the event of a dispute a medical professional will not administer a vaccination without both parents’ consent, or without an order of the court.

If you are in a situation where you and your ex-partner are unable to agree on vaccinating your child, there are three steps you can take:

1. Talk to your ex-partner about your concerns and explain why you have them.
2. If you are unable to reach an agreement you could consider mediation. A mediator may be able to navigate the issues professionally.
3. If you are still unable to agree, you should consider applying to the court for a specific issue order pursuant to Section 8 of the Children Act 1989.

What is the Position of the Court?

Following the decision in M v H (Private Law Vaccination) [2020] EWFC 93, the court clarified the position where two parents disagree in respect to a vaccination. In short, the court will order the children to be given a vaccination specified on the NHS vaccination schedule. Whilst the judgment did not specifically concern the COVID-19 vaccinations, the Judge made it clear that “it is very difficult to foresee a situation in which a vaccination against COVID-19 which approved for use in children would not be endorsed by the court as being in a child’s best interests” (para. 4, M v H).

The court further held that it would only be in a position to conclude that there is significant concern for the safety/efficacy of the vaccine subject of the application if there is medical research demonstrating the same. This will require existence of new, peer-reviewed research conducted by a reputable specialist or institution.

What is the Position Generally on Vaccinating Children?

Currently the vaccine is not compulsory for anyone. Parents will be asked to give consent but those aged 16 and above do not need parental permission. Those under 16 can decide to take the vaccine if they are considered to have full understanding (i.e. capacity) of the implications.

In short, if you and your ex-partner disagree on vaccinating your child, you should take every necessary step to try to come to a joint decision. Otherwise, if the matter goes to court, it can become a lengthy, distressing and costly process for all involved which may not be in the best interests of the child concerned. If you are in doubt, you can seek legal advice from an experienced family lawyer who will help explain all your possible options.