With the Covid-19 vaccine rollout for adults in the UK being hailed a success, it has now been confirmed that children aged 5-11 will be eligible for the vaccine as England and Northern Ireland become the latest nations to confirm this plan.
For some the decision on whether their children take up the vaccine is straightforward. However, for many there is now a dilemma over what to do. There may be differing views over whether the vaccine should or shouldn’t be given, creating a source of worry and anxiety for children and their parents. One major worry may be who gets to make the decision on whether a child has the vaccine or not. Another might be what happens if parents and children have different view. The decision is likely to be particularly challenging where parents are separated and differing views exist over whether a child should have the vaccine.
Who decides if your child gets the vaccine?
It is possible that the decision may rest with the child, their parents (or more accurately those with parental responsibility) or even the courts. The age of the child or young person will have a significant impact on who makes the decision.
Aged 16 and over:
The position for people aged 16 or over is relatively straightforward as they are automatically presumed to be able to consent to their own medical treatment. The decision on whether to have the vaccine will therefore most commonly be theirs to make, irrespective of what their parents may say. The young person’s views can only be overruled in exceptional circumstances, such as where they lack the capacity to make an informed decision. There is a presumption that the young person will have capacity, but if it can be shown that they lack capacity then the decision would then fall to either those with parental responsibility or the Court of Protection.
Aged 15 and under:
Where a child is aged 15 of younger, the position is more complex, which is why it is important to highlight this since the new reduction in age. If everyone with parental responsibility and the child are all in agreement about whether to have the vaccine or not then that is what will happen. However, if the child’s views are not aligned with those of their parents or if the parents cannot agree, the situation can become much trickier to navigate. Legally, there is no presumption that a child under 16 has the capacity to make the decision and instead they can only do so if they are judged to be Gillick competent. If they cannot be shown to have Gillick competency then the decision rests with those who have parental responsibility for the child, usually their parents.
What is Gillick competency?
Gillick competency is the test that arose in a court case of the same name for establishing whether a child can make their own decisions regarding medical treatment. To determine whether a child has Gillick competency, consideration would be given to the child’s:
age, maturity and mental capacity
understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact
understanding of the risks, implications and consequences that may arise from their decision
understanding of any advice or information they have been given
understanding of any alternative options, if available
ability to explain a rationale around their reasoning and decision making
It is assessed on an individual basis, so every child will be different. There is no set lower age limit for a child to be assessed as Gillick competent, but it is often accepted that it would be unusual for a child under the age of 13 to establish Gillick competency.
It remains to be seen how these tests will be applied in relation to the Covid-19 vaccine. Generally, immunisations are relatively straightforward concepts that older children can understand and make decisions over. However, given the challenges many adults are having in deciphering the information about the Covid-19 vaccine it may be possible to argue that most children will struggle to meet the threshold. It is anticipated that healthcare professionals will proceed with caution, particularly with children at the lower end of the age bracket currently being offered the vaccine.
What happens if a child is judged to have Gillick competency and their views are different to those of their parents?
Parents are being asked to consent to whether their child has the vaccine and anyone with parental responsibility for a child can give such consent. However, if a child can be shown to be Gillick competent then they themselves have the ability to consent to having the Covid-19 vaccine, or to refuse it, effectively overruling their parents’ wishes.
In practice, if parents have consented to the vaccine but a child is refusing it on the day, it is hard to imagine the child being forced to have it against their will; irrespective of whether they have Gillick competency or not. It seems much more likely that the issue will be referred back to the parents in the first instance.
The situation where a child wants the vaccine, but the parents have either not given consent or perhaps have actively stated a desire for the child not to be vaccinated, is a more challenging one. Exactly how this will be managed in practice is still unclear, but the government website currently states:
“If a parent objects to their child being vaccinated but the child wants to be vaccinated and is judged to be Gillick competent, the healthcare professional will try to reach agreement between the parent and child. However, the parent cannot overrule the decision of a Gillick competent child.”
It appears likely that there will be some mechanism for trying to align the views of parents and children in the first instance, but ultimately the decision of the Gillick competent child will prevail. It is even possible that the healthcare professional could make that judgement on the day of vaccination.
What happens if parents do not agree on whether their child should have the vaccine?
Anyone who has parental responsibility for a child can give consent for the vaccination to proceed. Legally, healthcare professionals only need the consent from one person with parental responsibility in order to proceed with medical treatment. However, the Public Health England guidance on immunisations states that if another person with parental responsibility disagrees with the vaccination being given then it should not proceed until the dispute is resolved or there is specific court approval.
Parents therefore face the prospect of either having to try to agree or consider a court application, unless their child is Gillick competent and can make the decision themselves.
How would the court approach the issue?
If the court is asked to determine the issue they will have to consider:
The wishes and feelings of the child (considered in the light of their age and understanding)
The physical, emotional and educational needs of the child
The likely effect on the child of any change in their circumstances
The age, sex and background of the child
Any harm or risk of suffering
The range of powers available to the court
Past cases that have dealt with issues of other vaccinations have generally seen the courts favour the giving of vaccines to children. This is almost always reliant on the scientific evidence demonstrating that it is in the best interests of the child to be vaccinated. As the Covid-19 vaccine has been given the green light, it seems likely that this approach may well be followed again. However, the advice from the Joint Committee on Vaccination and Immunisation (JCVI) regarding the Covid-19 vaccine being given to children is far from clear cut and appears to still be evolving. There are also many statements in the JCVI guidance about the impact on mental health, which may open up greater consideration in the courts of the wishes and feelings of the specific child and a wider assessment of harm.
There are as yet no reported decisions based on the latest guidance in relation to the Covid-19 vaccination for children, but it should be noted that there was a decision in the Court of Protection in SS v Richmond upon Thames LBC  4 WLUK 407 where the court ruled against vaccinating an adult dementia patient. This was in part due to the distress that would be caused in administering the vaccine, which was likely to involve a degree of restraint. If a child has particularly strong views it may be that a similar approach might be considered.
Alternatives to court
Court should be the last resort if there is a dispute between those with parental responsibility. Mediation is an effective option for those parents whose communication has broken down and are struggling to reach an agreement on the Covid-19 vaccine. It can offer a forum for exploring the views of each parent and can also ascertain the views of the child in an appropriate manner. By talking through issues, with the child’s interests at the heart of those discussions, parents are more likely to understand all of the views increasing the likelihood reaching of agreement.
If mediation is not successful, it would also be possible to consider arbitration to obtain a quicker determination that could avoid some of the intensity and cost of a court process. A quicker decision will also help a child who is otherwise left in limbo with the added anxiety of not knowing whether they will or will not have the vaccine.
The impact of Covid has been unprecedented. As has the anxiety and fear surrounding both the virus itself and the vaccine. We recognise that the issue of whether to proceed with the vaccine for a child is therefore both an important and an emotionally charged issue.
We can help you navigate any dispute over whether your child should be vaccinated, dealing with matters in a calm, considered and sensitive manner.
We have the expertise to advise you on all issues surrounding this, including advice on whether you have parental responsibility. We will strive to keep you out of court where possible and as an alternative to advising one party we can offer mediation for both parents.
We will also consider the wider dynamics of the family and look at what other resources may help all parties, but particularly the children, in navigating this and any other issues. Please contact our specialist family law team for assistance or more information.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.