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To jab or not to jab, who should decide?

| Published on October 19, 2021

With the recent announcement from the Government that children between the ages of 12 and 15 will be able to have their first COVID vaccination, Hayley Coyne, Paralegal in our Crewkerne office, has considered whether children are capable of deciding themselves whether to have the vaccine or, whether it is a matter for those with parental responsibility.

In England and Wales, a child under the age of 16 is not presumed to have the capacity to make decisions regarding their medical treatment themselves instead, it has to be shown that the child is Gillick competent.

A child is Gillick competent if they have a sufficient understanding and intelligence to enable them to understand fully what is proposed and, they are able to make a wise choice in their own interests as to the medical treatment.

If a child is not deemed to be Gillick competent then, it will be a matter for those with parental responsibility to decide on the medical treatment for the child and, therefore, whether they should be vaccinated.

The Gillick competency test was established in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 when, a mother sought declaration that it would be unlawful for a doctor to prescribe contraceptives to a girl of 16.

If those with parental responsibility differ in their views in whether the vaccine would be best for the child then, this may require an application to the court, for the court to determine what would be in the child’s best interests. The court’s paramount consideration is the welfare of the child and, there are several factors the court consider, these include:

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • their physical, emotional and educational needs;
  • their age, sex, background and any characteristics of his which the court considers relevant;
  • any harm which they have suffered or are at risk of suffering; and
  •  how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs.

Case law has determined however that, if scientific evidence establishes that it is generally in the best interests of otherwise healthy children to be vaccinated then, the court will find that it is in the best interests of the child’s welfare for the child to be vaccinated. This is especially the case when it is for the public good. (Re H (A Child: Parental Responsibility: Vaccination) [2020]). Recent case law has not however, wished to decide on the COVID19 vaccine itself however, MacDonald J did state in M v H ( private law vaccination) [2020] EWFC 93:

“it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests. “

If you have any questions concerning parental responsibility, contact our Family Department.

Bournemouth – 01202 421 111
Crewkerne – 01460 279 100
Poole – 01202 725 400

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