January 27, 2022

The impact of no vaccine on contact arrangements

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Anti vaccine

Some background

A recent decision in the Canadian family law system saw a father’s contact with his child suspended because of a refusal to obtain a vaccine 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.

Records in the UK show that by the end of last year, 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 this question still outstanding?

Current case law

Current case law has largely related to whether or not a child should be vaccinated rather than the potential impact of a lack of vaccine in a parent, for example. Some guidance was given in the case of M v H (private law vaccination) [2020] EWFC 93, [2020] All ER (D) 155 (Dec) which considered an application by a father for his child to receive several vaccinations, eventually being extended to include vaccination for COVID-19. Whilst MacDonald J 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 comment 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 his judgement, MacDonald J 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”.

Other considerations

The Children Act 1989 makes clear that the child’s welfare shall be the paramount consideration of the court when making its decision. Thought should be given to those principles in the welfare checklist which on this topic is likely to focus around ‘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 questions for the court to consider are (1) whether by allowing contact to take place, is the child being placing the child at risk of harm? If so, then (2) is that risk so high that it justifies putting restrictions in place?

There does not appear, at present, to be a general precedent to vary contact arrangements because of lack of vaccination however, with an increase in supporting medical evidence then the courts may find themselves forced into such a decision based on their obligation under Section 1. Any determination 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 not seem unrealistic however, that we might reach a position in the near future when there is a presumption that exposure to unvaccinated persons would cause increased risk of harm and 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 were to be against receiving the vaccine then it might reasonably be assumed that they also do not intend to comply with 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 and 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 and so this is very much a space to watch, albeit at times that might be from a recommended distance of two metres!

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