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Disputes between separated parents over vaccinating children 17/01/2022

The legal definition of Parental Responsibility, as outlined in the Children Act 1989, is "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property". A child’s mother has Parental Responsibility for her child automatically from the time of birth. In England and Wales, both parents have Parental Responsibility if they are married or in a civil partnership at the time of the child's birth or when fertility treatment started, or if they have jointly adopted the child. Both parents will keep Parental Responsibility if they later divorce or dissolve a civil partnership. A parent will automatically obtain Parental Responsibility if they are named on the child's birth certificate.

When parents who both have Parental Responsibility separate, divorce or dissolve their civil partnership, the routine day to day decisions concerning the child are generally made by the resident parent and do not require daily consent from the other parent with Parental Responsibility. However, the parent with whom the child lives, must include the non-resident parent in any important decisions concerning the child as any person with Parental Responsibility has the power and right to have a say in the important decisions in relation to a child's upbringing. Whilst the key roles for someone with Parental Responsibility are to provide the child with a home and to protect and maintain the child (including financial provision), they also have responsibility for discipline, provision of education, and medical treatment.

One such medical consideration is vaccinations and inoculations, especially relevant with the recent announcement that the Pfizer-BioNTech vaccine has been approved by the UK regulator for children between the ages of 12 and 15. The regulator’s guidance is that the vaccine is safe and effective for this age group, and that any risks are outweighed by the benefits of vaccination. Vaccines are not compulsory in the UK, but what happens if separated parents have fundamentally opposed beliefs about childhood vaccinations: one wants their child to receive it and the other does not?

Where parents with Parental Responsibility disagree as to the proper course of action in respect of an important decision concerning the child, the decision will fall to the court by way of a Specific Issue Order under section 8 of the Children Act 1989. The court’s paramount consideration will be the child’s best interests and it is these that will form the basis of its decision whether or not to grant the Specific Issue Order.

Recent case law has arisen in this regard. In the case of M v H and P and T (private law vaccination) [2020] EWFC 93, the mother of the children objected to their vaccination, whilst the father wanted them to receive the standard NHS scheduled childhood inoculations, including the MMR. The Judge in this case ruled that receiving the vaccinations was in the best interests of the children. Similarly, in Re H (A Child) (Parental Responsibility: Vaccine) [2020] EWCA Civ 664, the Judge overruled the parents’ (collective) objections to the vaccination of a nine-month old child, ruling in favour of the Local Authority’s wish for the child to be vaccinated. In this case, the Judge commented that such matters should “not be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare”.

It is clear, that in relying upon the general principle of acting in the best interests of a child, in the majority of cases the court will rule in favour of administering vaccinations to children. Parents who disagree on this or similar issues, should bear this in mind as the likely ultimate outcome were the matter to be decided by the courts. Parents should consider alternative approaches to resolve the situation between themselves, perhaps with the aid of mediation, family counselling or other alternative dispute resolution services.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.

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