Thanks to our fantastic partner law firm, McAlister Family Law, for this interesting Blog dealing with just one of the issues surrounding the pandemic and vaccination.
In a child’s best interests: to jab or not to jab…
Author: Ruth Hetherington, Partner and Head of Private Law at McAlister Family Law
Recently, there has been a case in America where a father in New York has been banned, by a family court judge, from seeing his daughter unless he gets the Covid vaccination.
Ruth Hetherington, Partner and Head of Private Law, Children Division at leading family law firm McAlister Family Law, is a highly experienced family lawyer of more than 25 years and a specialist in Children Law.
She has been a member of the Law Society Children Panel for more than 20 years and works closely with the Association of Lawyers for Children and is also a representative on the Cheshire and Merseyside Family Justice Board. Here, she takes a closer look at the issues involved.
This is an interesting scenario. In this particular case, contact was not deemed to be in the best interest of the child on the basis that the father was opposed to the Covid vaccination. The judge was quite strict in his ruling, notably amid a worrying time in the middle of a global pandemic, and made the following comments:
“The dangers of voluntarily remaining unvaccinated during access with a child while the Covid-19 virus remains a threat to children’s health and safety cannot be understated.
“Unfortunately, and to my mind, incomprehensibly, a sizable minority, seizing upon misinformation, conspiracy theories, and muddled notions of ‘individual liberty’, have refused all entreaties to be vaccinated.”
What happens with contact in the UK if a parent refuses the vaccine?
It’s a possible worry for a lot of parents, but not one that has seemingly featured in the family courts in England and Wales. If this was a matter raised by a parent, within the English courts, those courts are likely to be guided by Cafcass, the advisory service to the courts, to prepare an assessment to consider the risk factors and to decide whether contact is actually in a child’s best interest.
Extreme circumstances
In extreme circumstances, particularly if a child is medically vulnerable, Cafcass and the court may exercise caution: but it would be a rarity. No doubt the court would also consider NHS guidance and other expert evidence it considers necessary. Plus, there are now many modern alternatives to face-to-face contact, such as video contact and voice notes, that could mean the parent and child relationship could be maintained. It is a child’s right to have a relationship with both parents and the court will want to maintain that relationship wherever possible.
The court application
If the other parent is strongly opposed to their child being vaccinated (not just the Covid vaccine) and they cannot agree on this, then they could apply to the court for a Prohibited Steps Order and/or Specific Issue Order, which are orders that can prevent certain actions being taken by a parent, and/or decision making on matters that parents cannot agree upon in the exercising of their rights and duties relating to parental responsibility. Medical issues fall into these categories.
The court will consider the parents’ opinions and the best interests of the children.
Before making an application to the court, it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.
The child’s welfare
The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to agree to vaccinate your child, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move.
With the court considering what is in the child’s best interest, it is therefore important for you to do your own research and have the necessary information to inform your decision/position.
If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer.
