Amanda Wilson Family Law

To Vaccinate or not to Vaccinate – Who Decides?

Most teenagers will have the power to decide whether they receive the Covid-19 vaccine, or not.

With the vaccine now an option for 12-15-year-olds, a specialist family lawyer has clarified the position on consent.

Dundee-based Amanda Wilson of Amanda Wilson Family Law has revealed that, even if the parents of a child (under 16 years old) cannot agree on the topic, it could ultimately be down to the child to decide.

Amanda, who set up her family law practice almost a year ago said, “Covid vaccinations for this younger age group have understandably proved controversial and divided opinion.  Should children aged 12-15 receive the vaccination?  Do children have any say in this?  What happens if parents can’t agree on whether or not their child should be vaccinated?  All of these questions and more are coming our way and it’s particularly tricky when the parents are separated and simply do not agree on the subject.”

So what is the situation?

Normally, before a child undergoes any medical treatment or procedure including vaccinations, the medical practitioner carrying out the procedure will require the consent of the parents – as they will normally hold parental rights and responsibilities for the child.

In Scotland, a child can give their own consent to medical procedures once they have turned 16.  However, it is possible for them to give consent before they turn 16, provided that the medical practitioner attending them considers that the child is capable of understanding the nature and possible consequences of the procedure or treatment.

Amanda explained, “We have recently heard a lot about the term ‘Gillick competent’.  That term has derived from a House of Lords decision from 1986 known as Gillick, which clarified the law in this area and confirmed that children under the age of 16 may be able to provide consent in that situation.  In Scotland, this has been further cemented in the statute book by the Age of Legal Capacity (Scotland) Act 1991.  So this is not a new development in the law.

“So, when it comes to the Covid vaccine, even if parents can’t agree on whether their child should receive the vaccination, if the medical practitioner involved deems the child to be able to give consent – to either receive or refuse – then it is not up to the parents to decide.  The child’s views will prevail.”

However, if a child is younger or not sufficiently mature enough to give their consent, the situation is different and requires the parents, whether they remain married or not, to try and reach an agreement.

Amanda added, “If two parents holding parental rights and responsibilities can’t agree on whether their younger child should receive the vaccination, one can’t just ‘trump’ the other. They need to try and reach an agreement.  The parents would also be encouraged to seek the views of the child themselves, where appropriate.  Mediation is one option for parents in this situation.

“However, if agreement cannot be reached by the parents, then the default position is that the child will normally not be treated by the medical professional without an order from the court.  It would then be open to either parent to make an application to the court for a Specific Issue Order to either give or withhold consent to the vaccination on behalf of the child.”

In any decision involving a child in Scotland, the primary consideration is the welfare of the child.  Importantly, the court will only make an order if it is better for the child that an order is made than no order is made at all.  The court would hear evidence (which can include expert medical and scientific evidence) and decide whether it is better for the child to receive a vaccination than not to.

In a recent English case (M –v- H), the judge ruled that it was in the children’s best interests to receive the vaccinations (including the MMR vaccine) which are currently recommended as part of the NHS vaccination schedule.  Whilst the Judge refused to extend the order to include any future Covid-19 vaccination – on the basis that he considered that it was premature at that stage (January 2020), he did comment:

“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, absent peer-reviewed, researched evidence integrating significant concern for the efficacy and/safety of one or more of the Covid-19 vaccines or a well-evidenced contraindication specific to that subject child.”

Whilst that was an English decision (and therefore is not binding on the Scottish Courts), it is likely to be taken into account in any future Scottish court action involving vaccinations of children and particularly the Covid 19 vaccination.

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As one of only three Dundee lawyers accredited as a Specialist in Family Law by the Law Society of Scotland, Amanda, who graduated in Law from the University of Dundee in 2005, has dedicated her working life to supporting local families.

As a strong believer that court is a last resort, Amanda is also trained in Collaborative Law and Dundee’s only Family Law Arbitration Group Scotland (FLAGS) Arbitrator, using various skills and techniques to help clients reach a dignified and amicable settlement.

A former Dean of the Dundee Faculty, Amanda is a familiar face at Dundee Sheriff Court and experienced in instructing Counsel in Court of Session cases. Amanda is also a former Director of local charity Relationships Scotland – Family Mediation Tayside and Fife and has previously shared her experience in Professional Ethics with the next generation of lawyers, tutoring postgraduates on the Diploma in Legal Practice Course at the University of Dundee for almost a decade.