Making decisions about your child’s health is one of the most important aspects of parental responsibility. While most parents reach agreement, disagreements can—and do—arise, particularly regarding medical treatment like vaccination. When those who hold parental responsibility cannot agree, the question of who decides often falls to the Family Court in England and Wales.
Here is an overview of how the law approaches parental responsibility, consent, and the court’s power to intervene in a child’s healthcare.
1. The Core of Parental Responsibility and Consent
In the UK, vaccination, like all medical treatment, is not mandatory and requires valid consent.
Who Can Give Consent?
Parents: For a child under the age of 16, consent must generally be provided by an individual who holds parental responsibility.
The Child: A child under 16 may also provide their own consent if they are assessed as “Gillick competent.” This means the child has sufficient understanding and intelligence to fully comprehend the nature, purpose, and potential consequences of the proposed treatment.
When a Gillick Competent Child is Opposed by Parents
If a child under 16 is deemed Gillick competent and consents to a medical treatment like vaccination, their consent is generally valid. However, if a parent with parental responsibility opposes the child’s decision (whether the child wishes to be vaccinated or not), the parent can apply to the court. While a Gillick competent child can provide valid consent, a court can, in certain circumstances, override that decision if it determines the intervention is necessary and in the child’s best interests. In these situations, the court acts to ensure the child’s welfare remains the paramount consideration.
When Parents Disagree
If both parents hold parental responsibility and cannot agree on a specific medical treatment, neither has primacy over the other in making the decision. In such a deadlock, it falls to the court to decide what is in the child’s best interests.
2. When the Court Intervenes: The Specific Issue Order
If an agreement cannot be reached, either parent can apply to the Family Court for a Specific Issue Order under section 8 of the Children Act 1989. This order is specifically used to resolve disputes over key matters concerning a child’s upbringing, including medical treatment and vaccination.
The Court’s Paramount Consideration
When intervening, the court’s paramount consideration is always the welfare of the child. The court will assess what is in the child’s best interests, based on the specific facts and supported by medical evidence. Crucially, there is no legal presumption in favour of either parent’s opposing view.
3. Case Law Focus: The Court's Approach to Vaccination
Court decisions regarding parental disputes over vaccination provide the clearest guidance on how judicial intervention operates in healthcare disagreements.
The general principle established by the courts is that, in the absence of compelling evidence to the contrary, routine immunisation is overwhelmingly likely to be considered in a child’s best interests.
The High Threshold for Refusal
For a court to conclude that a vaccine is not in a child’s best interests, there would need to be:
– A credible and recent development in peer-reviewed medical science indicating significant concern about a vaccine’s efficacy and/or safety; or
– A well-evidenced medical contraindication specific to the individual child.
In simple terms, courts consistently rule that routine, approved vaccinations are in a child’s best interests unless there is significant, credible medical evidence against them. As the court noted, it is “very difficult to foresee a situation” in which a vaccine approved for children and endorsed by official guidance would not be in a child’s best interests.
COVID-19 Vaccinations and Local Authorities
During the COVID-19 pandemic, the question of newly developed vaccines also came before the courts. The High Court held that COVID-19 and flu vaccinations were not of such “gravity” as to routinely require Court adjudication in all cases.
The court made it clear that where a Local Authority holds a care order for a child, it can consent to such vaccinations, even where the parent objects, unless exceptional circumstances (like new scientific evidence or a specific medical risk) arise.