Can a family court stop an unvaccinated parent from seeing their child?

Vaccinations and family law - the current position

There have been plenty of unforeseen legal consequences around the Covid-19 vaccination programme. From mandatory vaccinations in certain sectors to what exemptions are available and to whom, vaccination has made plenty of headlines - and family law is no exception.

In Canada, a recent court decision saw a father's contact with his child suspended when the father refused to be vaccinated against Covid-19. A Judge in the Quebec province found that visits to see the child would not be in the child's "best interest" in an outcome which appears to be the first to see a parent deprived access based on immunisation grounds.

What do the English and Welsh family courts say?

Records in England and Wales show that by the end of 2021, over 90% of the population aged 12 and over had received at least the first dose of the vaccine. But what is the position in the English & Welsh jurisdiction for those adults in the remaining percentage that want to see their children? Is a person with parental responsibility likely to be penalised for not being vaccinated on the basis that it might cause the child some risk of harm? Or is this question still outstanding?

When it comes to vaccination, current case law largely relates to whether or not a child should be vaccinated, rather than dealing with the potential impact of a lack of vaccine in a parent. For instance, the case of M v H (private law vaccination) [2020] EWFC 93, [2020] All ER (D) 155 (Dec) considered an application by a father for his child to receive several vaccinations, eventually being extended to include vaccination for Covid-19. The Judge in this case declined to consider the issue of the Covid-19 vaccination specifically due to the lack of guidance from the NHS at that time; he did, however, provide some useful guidance stating that “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 of peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the Covid-19 vaccines or a well evidenced contraindication specific to that subject child”.

In this judgment, the court also referred to the guidance in the earlier decision of Re H (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 [2020] 2 FR 753 in which it was decided that “a court will be unlikely to conclude that immunisation with the vaccines that are recommended for children by Public Health England and set out in the routine immunisation schedule is not in a child's best interests without (a) a credible development in medical science or new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccines that is the subject of the application and/or (b) a well evidenced medical contraindication specific to the child or children who are subject of the application”.

The principles and the practicalities

The Children Act 1989 makes clear that the child's welfare shall be the paramount consideration of the court when making its decision.

The welfare checklist will guide the legal thinking on this topic. Some of the relevant points to consider would be 'any harm the child has or is at risk of suffering' as well as ‘how capable each of the child's parents, and any other person in relation to whom the court considers the question relevant, is of meeting the child's needs”. Arguably, the court has the following questions to consider:

• is the child being placed at risk of harm by allowing contact with an unvaccinated parent?
• and if so, then is that risk of harm so high that it justifies putting restrictions in place?

At present, there is no precedent to refuse contact arrangements because of lack of vaccination. However, with an increase in supporting medical evidence, the courts may find themselves forced into such a decision based on their obligation under Section 1. Any decisions will need to be based on the specifics which, as highlighted in the case of Re H, will include considering whether the child has any idiosyncrasies which would make them more susceptible to infection. It does seem entirely possible, however, that we might in the near future reach a position when there is a presumption that exposure to unvaccinated persons would cause increased risk of harm. In this case, the burden of proof switches to that where an unvaccinated parent has to convince the court otherwise.

Aside from the above, there is also a practical element to whether contact arrangements might be affected. If someone refuses to be vaccinated, it is quite reasonable to assume that they won't comply with any other measures, such as wearing a face mask. Take the example that contact was to take place in a contact centre and the centre required all persons to take such protective measures; then a situation may arise where it is not possible due to comply with a Child Arrangements Order because of personal choices. We then find a situation where the court is having to balance a right to contact with risk of harm, and a parent having to balance their personal choices with wanting to see their child. Arguably, one's choice in the latter might impact the court's decision on the former.

The future

We are receiving more information about Covid-19 on a daily basis and with this comes an ever-growing list of cases for which these questions are particularly relevant. Inevitably, as understanding of the virus develops, so will the law. This is very much a space to watch, albeit at times that might be from a recommended distance of two metres or more recently, none at all.