Covid-19 vaccines and children – a guide for practitioners

In September 2021 the government announced that all children without an underlying health condition aged 12 to 15 in the UK would be offered one dose of the Pfizer/BioNTech vaccine, on the advice of the UK’s four chief medical officers. This followed a similar announcement in August 2021 that 16- and 17-year-olds without underlying health conditions were to be offered one dose of a Covid-19 vaccine.

The chief medical officers’ recommendations for the 12- to 15-year-old age group were based on consultations with professional medical bodies and public health leaders, as well as the earlier report by the Joint Committee on Vaccination and Immunisation (JCVI) on the subject in September 2021. Whilst the JCVI’s report concluded that the margin of benefit was too small to support the universal vaccination of 12- to 15-year-olds who did not have underlying health conditions, the chief medical officers decided that when combined with the Covid-19-related rise in mental health issues and educational disruption, there was sufficient justification for vaccinating this age group. Children aged 12 to 15 with health conditions that put them at increased risk from Covid-19, as well as those who live with someone who is immunosuppressed, had already been invited earlier in the year for Covid-19 vaccinations and are eligible for two doses of Pfizer/BioNTech.

In either age group, the issue of consent to this vaccine remains important, and family lawyers are likely to receive queries from concerned parents, guardians and children over their legal position on this issue in the coming months, which this article aims to address.

Legal background

In Issue 211 (March/April 2021) of The Review, Emily Foy’s article, “Vaccinating children: public and private law principles” set out the relevant case law and procedural steps that should be followed (per Thorpe LJ in Re: C (Immunisations) [2003] 2 FLR 1095 and Theis J in F v F (MMR vaccine) [2013] EWHC 2683 (Fam)) when two or more parties hold parental responsibility for a child and cannot agree as to whether that child should be vaccinated. If just one person holds parental responsibility, then they can, of course, act alone.

The article also looked at two recent cases that considered the issue, one founded in private law principles (M v H (Private law vaccinations) [2020] EWFC 93) and one in public law (Re H (A child) (Parental responsibility: Vaccination) [2020] EWCA Civ 664). Whilst both cases were decided prior to the government’s announcement about vaccinating children against Covid-19, the points within them in relation to the court’s considerations when deciding whether to agree to a vaccine more generally remain good law. Rather than repeat the private law principles on parental consent required for the vaccination of a child and case detail that was covered by Emily Foy, readers should instead refer to her article in conjunction with this one.

Where the child wants, or refuses, to have the Covid-19 vaccine and this is contrary to the decision of at least one of their parents or guardians, then the issue of Gillick competence would come into play. Munby P (as he then was) clarified in the case of Re D (A child) [2017] EWCA Civ 1695 that the relevant case law, legislation and international treaties do not prescribe 16 as the age when a child is assumed to have the competence or capacity to make decisions independent of those who hold parental responsibility for them. In fact, the age at which a child has the capacity to decide a particular issue varies according to their individual characteristics, maturity and understanding (Gillick v West Norfolk and Wisbech Area Health Authority and another [1986] AC 112). If, in the opinion of the relevant health professional, a child, at any age, has the capacity to decide whether to consent to their vaccination, a parent or guardian’s consent (or refusal) cannot override the child’s decision. This position was reaffirmed recently by Lieven J in AB v CD & ors [2021] EWHC 741 (Fam). If a child, at any age, does not have the requisite capacity, a parent or guardian with parental responsibility can consent to the vaccine on their behalf, or seek a specific issue order from the court if there is more than one person holding parental responsibility and they cannot agree. Notwithstanding the legal position, we are aware of at least one health trust that has announced that they will not rely on “self-consent” in order to vaccinate pupils, but instead will only vaccinate if they have parental consent.

The court’s likely approach to specific issue applications relating to the Covid-19 vaccine

Whilst there have not yet been any reported private law cases dealing specifically with a dispute between parents over whether or not their child should be given the Covid-19 vaccine, the case of M v H (Private law vaccinations) [2020] EWFC 93 provides a helpful updated summary of the factors that the court looks at when addressing the issue of childhood vaccinations, as well as obiter comments made by MacDonald J specifically addressing the Covid-19 vaccination.

In that case, whilst the father’s application only originally concerned the MMR vaccine, it was later widened to consider all childhood vaccines currently included on the NHS vaccination schedule, as well as prospective travel vaccinations and the vaccination against Covid-19, when it became available.

MacDonald J was not prepared to make an order with respect to the Covid-19 vaccination as it would have been “premature” in circumstances where the vaccine had not, at that point, been rolled out to children at all (and the children in the case were only 4 and 6 years old). However, he wished “to make abundantly clear” (his emphasis) that his decision not to make this order did “not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine”. His decision was made purely on the basis that it was unclear whether and when children would receive the vaccine, and what any official guidance would be regarding its administration. Importantly, although strictly obiter, he went on to say that it was:

“… very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes Covid-19, would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well-evidenced medical contraindication specific to the subject child.”

Whilst it is probable that the courts, when faced with the actual, rather than hypothetical, question of the Covid-19 vaccine may come to a similar conclusion, one difference to the decisions of Re H and M v H is that the Covid-19 vaccine does not form part of the NHS vaccination schedule. Added to that is the advice of the JCVI on the limited medical benefit of the vaccine for children, although since overridden by the chief medical officers for essentially societal reasons. Each decision will therefore need to be made on a case-by-case basis in consideration of what is in the best interests of the child in question.

In the very recent case of Re C (Looked after child) (Covid-19 vaccination) [2021] EWHC 2993 (Fam), the court was asked by a local authority to consider whether it was authorised to act and give its consent to a child it looked after, C, being vaccinated with the Covid-19 and flu vaccines, in circumstances where C, his guardian, the local authority and his father were all in agreement on the subject, but C’s mother was strongly opposed to him receiving the vaccine. Referring to the decisions made in Re H and M v H, Mr Justice Poole concluded that in accordance with the principles from Re H, there was no requirement for the local authority to apply to the court for the decision to be authorised, “but had it been necessary I would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances, including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings”.

The practicalities

The NHS has confirmed that most children between the ages of 12 and 15 will be vaccinated at school and that parents, or those with parental responsibility, will receive information about when the vaccine will be offered to their child and will be asked to give their consent. For children aged 16 to 17, their vaccines have been and will be administered at walk-in NHS clinics.

For children aged 12 to 15 years, consent will be sought by the local School Age Immunisation Service (SAIS) provider from the parent or person with parental responsibility in the same way as for any other school vaccination programme, but schools have also been asked to “agree a process” and then “share the information leaflet, consent form and invitation letter supplied by the SAIS team with parents and children”.

The guidance that has been provided to schools by the government on this issue also states:

“All parents or those with parental responsibility are asked for consent and will usually make this decision, jointly with their children. The information leaflet is addressed to the child (as the recipient of the vaccine) and encourages them to discuss the decision about the vaccine with their parents.

In secondary schools, some older children may be sufficiently mature to provide their own consent. This sometimes occurs if a parent has not returned a consent form but the child still wishes to have the vaccine on the day of the session.”

Given the involvement of schools in the process of facilitating the programme (including assisting with obtaining consent, even if the government is stressing that schools “are not responsible for securing parental or child consent”), we thought it would be helpful to offer an insight into what advice schools are being given on this subject. Theresa Kerr, a partner in our firm’s education team, had the following comment:

“Parental separation has been identified as a potential issue in the Covid vaccine rollout. Even though the clinicians are responsible for administering the vaccine and ensuring they have consent, schools are required to share the information leaflet, consent form and invitation letter supplied by the SAIS team with parents and children. Our view is that they should ensure that both parents receive communications about the vaccine when they know they are separated. Otherwise, if one of the separated parents isn’t notified about when vaccinations are due to take place or asked to give consent, it could lead to a complaint against the school if the other parent has consented and the child receives the vaccine against the other’s wishes. Where there is a difference of opinion, it will be for the SAIS team to deal with it, not the school, but the SAIS team will most likely be relying on the school to send the relevant communications about vaccinations to parents in the first place.”

It will also be for the SAIS team to deal with any question over a child’s Gillick competence and whether the child has capacity to consent to the vaccine if their parents do not.

Practical tips for parents

The Covid-19 vaccine has already caused a split in opinion and schools have been receiving queries and threats of legal action in relation to it, even though they are not responsible for the decisions surrounding the vaccination programme.

It is inevitable that where parents or guardians have differences of opinion about whether their child should be vaccinated or not, direct discussions between them will be difficult and emotions will run high. As such, they should consider seeking (and they should be advised to seek) the assistance of a neutral third party early on to facilitate their discussions, help them to identify the exact issues and areas of concern, and try to reach a resolution. Depending on their co-parenting relationship, this could be a counsellor or therapist, parenting coach or a mediator.

Ultimately, if the parents cannot agree on this issue between themselves or with the help of a neutral third party, then they may have no option but to go to court and have a judge decide what is best for their child/children by way of a specific issue order. While parental views must always be taken into account by the court, along with the wishes and feelings of the children themselves if not Gillick competent, it will make its decision based on what is in the child’s best interests and not on the strength of the parents’ particular views.

Given MacDonald J’s comments above, it seems likely that in the absence of specific evidence that indicates receiving the vaccine would not be in that child’s best interest (for example, if they had a medical condition) or a further development in medical science, a specific issue order would be made and the child would receive the vaccine. This was a position echoed by King LJ in the Court of Appeal decision of Re H (A child) (Parental responsibility: Vaccination) [2020] EWCA Civ 664.

Conclusion

Whilst the uptake of first doses in the younger age groups has so far been relatively low, the UK’s chief medical officers have already asked the JCVI to start looking at whether to give – and what – second doses to healthy 12- to 15-year-olds once more data on second doses in this age group has accrued internationally. This will not be before the spring term of 2022. Across the pond, the US Food and Drug Administration (FDA) has now recommended the Pfizer/BioNTech Covid-19 vaccine for children aged 5 to 11. Whether children in this age group will also be offered the vaccine in the UK is yet to be seen and does not currently appear to be high on the government’s agenda. However, it is likely that if the vaccine is opened up to this age group, family lawyers may start to notice a further increase in enquiries on the issue of consent, especially as the Covid-19 vaccine seems to be so divisive.