Who decides if a child should be immunised?

So, it’s October and the new school year is now well under way. My youngest has just started school and almost immediately returned home with a form requesting my permission for him to receive a flu immunisation at school. Most parents, by the time their children go to school, already pretty much know where they stand in terms of whether they will have their children immunised or not. But, as school flu immunisations are a fairly new thing (even newer is that the nasal spray now comes in a choice of flavours, such as Milky Way!), it did make me think a little more about it.

In the UK, parents are able to decide whether or not to immunise their children, there is no mandatory immunisation such as there is in some other countries. For example, all US states require children to be vaccinated in order to attend school. In this country children automatically go into the immunisation system. Many parents just go with the flow and get their children vaccinated whereas others do give this issue a great deal of consideration.

The various medical, social and ethical arguments for and against immunisation are outside the ambit of this blog, but what happens if both parents do not agree on the decision whether to immunise their children? Where parents are separated, whatever the living arrangements are for the children, both parents have parental responsibility for the children. This means they have the authority to make decisions about medical treatment, including immunisation, and should consult with the other person with parental responsibility before making important decisions like this. If parents cannot agree about whether to immunise their child then either parent could apply to the Court for a Specific Issue Order to make a ruling as to whether or not the child should be immunised.

There has been a recent case in the High Court about this very issue. The case concerned two children aged 2½ and 4. The mother was a vegan. She objected to her children being immunised because “no vaccine is vegan” and she said that her children’s bodies were as free of toxins as she could possibly make them. She took the view, “It was not natural to be injected with metal elements and it went against her beliefs for her children to be injected with something that is grown on animal cells or something that has been tested on animals.”

The boys’ father disagreed and applied to the Court so that his sons could receive vaccinations. He described the mother as, “Obsessive, over protective and narrow in her views”. The father alleged that the mother had a suspicion of conventional medicine.

The oldest child had already received some vaccinations but the mother felt that he had suffered some adverse reaction from them. However the medical evidence in the hearing was that both children could be given immunisations without any increased risk of adverse reaction or side effects.

The case initially came to Court in December 2016 and the Judge ruled in dad’s favour. After the court proceedings were finished, in a surprising turn of events, the dad later changed his mind and no longer wanted the children to be immunised (or perhaps this wasn’t such a shock given that the mum had raised his flakiness before the Court). The reason was that the father had realised what a “profound effect” the Judge’s decision had upon the mother and apparently he realised that he had taken the wrong course of action. The difficulty then was that there was a court order requiring that the children be immunised, but neither parent now wanted this!

The Judge then had to decide whether to discharge his order requiring that the children be immunised, or enforce the order for immunisation which would mean that the children would be immunised against both parents’ wishes. The Judge found that whilst he still remained of the view that for medical reasons immunisation would be best for the children, the practicalities of enforcing such an order against the parents’ wishes would ultimately be more harmful to the family than the risk to the children of not being immunised.

In the case above, the mother argued that her children would be protected by, “Herd immunity” and therefore didn’t need to be vaccinated. There needs to be a 95% uptake of immunisations amongst children in the population to achieve herd immunity (ie. vaccinated people are less likely to infect others, this reduces the risk of unvaccinated individuals being exposed to infection, this is known as herd immunity).

The Department of Health’s green book states that if high vaccination coverage is not maintained, it would be possible for the disease to return. In 2012/13 there was a measles epidemic in Wales and the majority of those infected had not been immunised as infants due to the MMR scare. Brighton & Hove had the second lowest childhood immunisation uptake rates in the South East coast and was significantly below the national average from 2010 to 2012*. There was a measles outbreak in Brighton in 2011 and in some cases, babies too young to be vaccinated contracted the illness. This lead to a poll in the Argus about whether immunisations should be mandatory.

If parents cannot agree and the case goes to Court, the Court will consider the child’s welfare as the most important consideration. All cases will be dependent on their facts as to the benefit and risks of immunisation to the individual child. However due to the medical profession’s approval of vaccinations, unless a child has a specific medical reason as to why an immunisation could be harmful for them, it is likely the Court would order for an immunisation in the majority of cases.

As such if a dispute does arise between parents about immunisations, or indeed other medical treatments, then ultimately they might need to go to Court for a decision to be made. However they should first consider going to mediation to discuss issues. Whatever the route, it is worth seeking legal advice about all of the options and the best way forward. Also, it would be rare for a dispute about immunisations to be the only issues between the parties and there may be many other matters that a solicitor could assist and advise upon. In the vegan mum/flaky dad case above, the Court was also being asked to consider the children’s contact with their father. Other disputes might be about where the child goes to school, a change of the child’s surname, or a move abroad. A specialist family solicitor will be able to provide advice on all of those matters and many more.

Posted in: Family law

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