Blog post by Luke McLean of the Garden Court Chambers Family Team.
M v H (private law vaccination) [2020] EWFC 93
"It is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child's best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidenced contraindication specific to that subject child.“ [4]
Following the decision in Re H (A Child: Parental Responsibility: Vaccination), it was clarified that where two parents with parental responsibility disagree as to the proper course of action with respect to vaccination, the court becomes the decision maker through the mechanism of a specific issue order made under s8 of the Children Act 1989.
The child’s best interests are the court’s paramount consideration when deciding whether to grant the specific issue order.
During the course of private law proceedings, the father made an application for a specific issue order under s8, Part II of the Children Act 1989. The matter before the court was whether it was in the best interests of P, aged 6 and T aged 4 to be vaccinated in accordance with the NHS vaccination schedule.
The father’s application initially concerned the MMR vaccine but later widened to include other childhood vaccines included on the NHS vaccination schedule and the Covid-19 Vaccine. The children’s guardian was in support of the children being vaccinated.
The judgment was later confined to vaccines that are currently included on the NHS vaccination schedule including the MMR vaccine but no doubt, these cases will set a direction in how Covid-19 vaccination cases are likely to be dealt with in the future.
The mother resisted the application making several submissions. The thrust of her argument was that she had various concerns about the vaccine in respect of the safety of the vaccine, and whether it was necessary for the children to be vaccinated, as it did not immunise them. Further, that serious complications caused by the viruses vaccinated against were uncommon in healthy well-nourished children.
LJ Macdonald was satisfied it was in the best interests of P and T to make a specific issue order requiring each child to be given each of the childhood vaccinations currently specified on the NHS vaccination schedule relying on Re H.
In Re H, the Court of Appeal came to the conclusion that scientific evidence establishes that it is generally in the best interests of otherwise healthy children to be vaccinated.
It was held that the court will only be in a position to conclude that there is significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application if there is a credible development in medical science or new research demonstrating this. That will require, at a minimum, the existence of new, peer reviewed research conducted by a reputable specialist or institution and even then, would probably require a joint expert being instructed.
Finally, the court did not accept that Article 8 rights would be breached and ruled that the specific issue order strikes a fair balance between the rights of P and T and the interests of the community. That is because the objective of vaccination, namely to protect the children from the consequences of the diseases vaccinated against and the population more widely from the spread of such diseases, is sufficiently important to justify the limitation of a fundamental right and is rationally connected to the objective.
