Author

Advocate Nina Benest

Partner

The development of a Covid vaccine

Author

Advocate Nina Benest

Partner

The development of a Covid vaccine, parental responsibility and the prickly subject of childhood immunisations

The prospect of a Covid vaccine being available soon has come as welcome news to many. However, not everyone is happy at the prospect of a new vaccine on the horizon. There are some who deny the severity of Covid, those who object to vaccines as a point of principle and those people who are nervous about subjecting themselves to a new vaccine that may have long-term side effects which are not yet understood.

Rarely do parents agree on every aspect of their child’s upbringing, but usually most parents agree on the big issues facing their children. Perhaps just as well, as the concept of parental responsibility (“PR”) which may be held by both parents, is not exercised by committee. Generally every person who holds PR for a child may exercise it independently of anyone else who also holds it.

What happens if parents fundamentally disagree over a subject as important and binary as having their child inoculated? What will happen if the Covid vaccine divides parental opinion?

The very strong, yet opposing views as to the appropriateness of the MMR vaccine were well documented in the press, and gave rise to a number of cases where that divergence of opinion occured between parents who then had to turn to the Courts for help. In 2003 the Court of Appeal in England said “Where parents were in dispute about the immunisation of a child against infectious disease, neither parent had the right to make the decision alone and immunisation should be carried out only where a court decided that it was in the best interests of the child…..” 1

Both parents will be determined that their view constitutes what is empirically in the best interests of their child. So how does a judge choose between these diametrically opposing opinions to establish what is in the best interests of the child? Were such a situation to arise in Jersey, the Royal Court would no doubt look to the decisions in England and Wales for guidance given our Children (Jersey) Law 2002 so closely resembles the Children Act 1989 in England.

The English Court of Appeal has said that in such cases, the judge’s assessment of divergent expert opinion was likely to be determinative; therefore the judge should make his assessment of and findings on the expert evidence before considering other relevant factors. The judge would then need to consider the weight to attach to each additional factor and the order in which they should be considered.

Clearly there is going to be a winner and a loser as far as the parents are concerned; such is the nature of a binary decision. But should any greater weight be attached the views held by the primary carer? They have the day to day care of the child and may consider they, better than anyone know their child and what is in that child’s best interests. The Courts have repeatedly held that the rights of the resident parent, are no greater than the rights of the absent parent. However, judges have also stressed the need to be sensitive to the impact on the ongoing relationship between parent and child of any decision that went against the parent’s strongly held views: “the court recognised the importance of the bond between a child and the parent with whom he or she lived, and would take care to safeguard and preserve it in the best interest of the child. If a course was proposed that was beneficial for the child but might cause damage to that relationship, the court would balance the issue with great care ..” 2

Objection to medical treatment may also be voiced by a child. Each case will be fact specific. Much will depend on the age, maturity and understanding of the child in question, whether they can consider and balance the wider picture including the consequences of not being vaccinated and the degree of influence of one parent’s strongly held beliefs.

The strong message coming from the cases is, that without a compelling reason, the Court is likely to follow the received medical wisdom presented in evidence. While the Court must consider all relevant factors making up the welfare checklist, usually the greatest weight will be accorded to whatever course of action is most likely to promote the child’s medical health and alleviate risk in accordance with the “…child’s right to the enjoyment of the highest attainable standard of health under Art 24 of the United Nations Convention on the Rights of the Child 1989” 2 What remains to be seen is how much weight will be attributed to public policy to achieve mass vaccination, in the face of a global pandemic.

  1. Re: C (Welfare of Child: Immunisation) [2003] 2 FLR 1095 CA
  2. Re: C _Welfare of Child: Immunisation) [2003] EWHC 1376 (Fam)

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