Parental responsibility and vaccinations

The recent case of Paloma Shemirani, a young person who died having refused traditional treatment for cancer, highlighted the potential impact and influence of the spread of medical misinformation via the internet.

Whether or not to vaccinate a child against childhood illnesses is an area of debate among parents, who in the era of social media have access to a wide array of information from many sources when making these decisions.

There are a decreasing number of children having the vaccinations recommended by the NHS, and an increase in outbreaks of childhood illnesses such as measles. This situation is translating into questions for family lawyers from separated parents.

If one parent wants to vaccinate and the other does not, then what will happen?

Decisions about whether a child should receive medical treatment, including vaccinations, should be made by those with parental responsibility for a child. Mothers automatically have parental responsibility and fathers; second female parents or other parents/carers may acquire parental responsibility.

The family court may make court orders about vaccinations: specific issue orders that a child should receive a vaccination, or a prohibited steps order preventing this. Prior to making a court application, and absent any exceptions or safeguarding issues those holding parental responsibility should try to resolve the dispute via ADR [Alternative Dispute Resolution]. A mediator may assist in facilitating an agreement, or an arbitrator may make a binding decision (provided the need for the treatment is not life threatening).

An arbitrator or the court will decide on these issues based on what is considered to be in the welfare best interests of the child. If expert evidence is required to assist the court in this decision making, then the party wishing the court to consider this evidence must make an application under Part 25 and the court must consider that this expert evidence is necessary in order to determine the issue. The court must also consider the impact of delay in a resolution when considering whether expert evidence should be heard.

The Birketts view

In relation to a child receiving the usual vaccinations recommended by the NHS, absent any medical evidence that this particular child should not receive the vaccination due to their own properly diagnosed health conditions, in Birketts’ experience, and based on current case law, it is inevitable that the court will order that the child should have these vaccinations.

The court is unlikely to consider evidence adduced by a party such as that easily viewed on social media about vaccinations (anti-vax), for example, putting forward a view that vaccinations cause autism in children, as reliable or expert and indeed are likely to dismiss them as unreliable, not credible and ‘junk science’.