The Covid-19 vaccination and parental responsibility

Of all the concepts in family law, that of “parental responsibility” is perhaps the most deceptively simple. Further to the Children Act 1989, parental responsibility means “all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and [their] property[1].” One might think that the issue of what “rights and responsibilities” a parent has in relation to their child should be relatively straightforward. However, given the level of complexity in this area, schools should consider carefully how they should proceed when faced with disputes between parents concerning decisions regarding their children.

The Children Act emphasises the responsibilities of parents towards their children (as opposed to the historic position, which focussed on parental authority and rights “over” children). There is no definitive list setting out what falls within the scope of those responsibilities, but the following are examples:

• Meeting them child’s physical needs, including by maintaining them and providing them with a home and protection from harm.
  
  
• Providing the child with guidance and appropriate discipline.
  
  
• Selecting an appropriate school for the child and facilitating their education.
  
  
• Consenting to medical treatment on behalf of a child.
  
  
• Removing the child outside of the United Kingdom, whether on a temporary or permanent basis.

However, ultimately the principle goes beyond lists of responsibilities and decisions. As the former President of the Family Division, Sir James Munby, put it, parental responsibility is “a fundamentally important reflection on the realities of the human condition, of the very essence of parent and child.”[2]

Who has parental responsibility?

The very first question to be asked in any dispute concerning a child will always be, “who has parental responsibility?”. For the majority of the children, the answer will be that their parents will have parental responsibility. Where parents are married to each other at the time of the child’s birth they shall each have parental responsibility. Where the father and the mother of a child are not married to each other at the time of the child’s birth the mother will have parental responsibility at the time of the birth, but not the father. However, an unmarried father can acquire parental responsibility in a number of ways. The most usual route is for the father registered as such on the child’s birth certificate in England, Wales, Scotland or Northern Ireland will have parental responsibility. If not, an unmarried father and mother may execute a “parental responsibility agreement” – or alternatively in more extreme cases where a mother does not consent then the Court may make an order granting the father parental responsibility.

Whilst it is important to ascertain who has parental responsibility in relation to a child, in the vast majority of cases both the mother and the father will have parental responsibility (or, if the father does not, he will be able to acquire it with relative ease). However, families are now more diverse than ever before – so remember to think beyond the nuclear family. It is not unusual for same-sex couples, both male and female, to both have parental responsibility for their children. This includes where a child has been adopted (as an adoption order confers parental responsibility to the adoptors) or where one of the parents is the “biological” parent but not the other.

In addition to rainbow families, parental responsibility can be shared within blended families. Step-parents can acquire parental responsibility, either by agreement or by an order of the court. Although such arrangements are relatively rare, this means that it is at least possible for there to be more than two individuals with parental responsibility. In addition a child’s guardian (ie a person appointed to look after a child in a parent’s Will) or special guardian (ie a person other than the child’s parents with whom a Court has ordered they should live) will have parental responsibility, as would a Local Authority in whose favour a care order has been made.

The above demonstrates how important it is to ensure that schools collect full details of all holders of parental responsibility for a child from the outset.

Shared parental responsibility

Where parents share parental responsibility, they each have equality in terms of any decision making process. Although it is possible for a parent’s parental responsibility to be extinguished by the Court, this would be relatively rare – and the fact a parent does not live with their child does not mean that their parental responsibility has been affected.

Although the Children Act provides that each parent “may act alone and without the other (or others)” in exercising / meeting their parental responsibility, the Courts have made clear on numerous occasions that there are certain decisions that require the parents to consult with each other. There is not a comprehensive list of matters which require joint decision making, but it is accepted good practice that any significant decisions must be made jointly. For example, the Courts have found that a parent “having parental responsibility, was entitled to and indeed ought to have been consulted about the important step … of sending [the child] to boarding school.”[3]

The vast majority of separated parents can and do reach agreement in relation to disputes concerning decisions regarding the children (whether through direct discussions or mediation). In those extreme cases where agreement is not possible, one parent may make an application to the Court for either a “specific issue order” (an order to determine a specific dispute in relation to the child) or a prohibited steps order (an order that something must not happen in relation to the child). The Court will determine each case on its own merits, ultimately coming to a decision based on what the judge considers to be in the best interests of a child, taking into account a number of factors known as the welfare checklist. This includes the ascertainable wishes and feelings of the child which, although not necessarily determinative, will carry greater weight the older a child gets.

Vaccinations

A particularly topical issue in the months and years to come is likely to be that of the Covid-19 vaccination (and, in due course, the seemingly inevitable booster jabs). At the time of writing, the four Chief Medical Officers of the United Kingdom have recommended that children aged between 12 and 15 years old should receive a first shot of the Pfizer-Biontech vaccine. The UK Joint Committee on Vaccination and Immunisation (JCVI) had already recommended that all 16 to 17 year olds (and some younger children with underlying health conditions) should receive a first dose.

Strong opinions about vaccinations are not a new phenomenon and there are a number of issues that schools will need to consider in the coming months from a practical perspective that go beyond the scope of this article (such as practicalities and potential information sharing issues). Within families, the ultimate practical question is who must provide consent to a child’s vaccination (and what then happens if there is a disagreement within the family).

The position in relation to 16 and 17 years olds is relatively simple. Further to section 8(1) of the Family Law Reform Act 1969, such children are presumed to have the capacity to consent to medical treatment (such as vaccinations) without the involvement of their parent or guardian.

The position in relation to children under 16 is more nuanced. The Public Health England Greenbook provides that the consent of one person with parental responsibility is usually sufficient (given that, as set out above, persons with parental responsibility may act alone and without the other in making decisions). This is an area where professionals will need to tread carefully, particularly if they are aware of the other parent’s views as if one person with parental responsibility for a child objects, the immunisation should not proceed unless agreement can be reached or a court orders that it take place.

However, there are children under the age of 16 who can consent to treatment on their own behalf. If a medical professional determines a child to be Gillick competent (effectively whether a child understands fully what is involved and the attendant potential consequences), that child can consent to medical treatment (and the child’s consent cannot then be overridden by their parents).

In theory, where a Gillick competent child or a child of 16 or 17 refuses medical treatment a person with parental responsibility could override that decision by providing consent on their behalf – but in practice a medical professional is unlikely to act on such consent and the intervention of the court may be required in a sufficiently serious case.

The extent to which the courts are likely to see an uptick of cases remains to be seen, but the majority are likely to relate to younger children where parents disagree about the principle of vaccination. Such applications would be determined by the court in accordance with the best interests of the child, based on the particular factors of the particular case. However, we already have a hint of the approach that at least one judge would likely take. In December 2020, just as the first vaccinations were taking place, Mr Justice MacDonald was asked to determine whether two children should receive the MMR and other childhood vaccinations. The children’s mother opposed vaccinations in general. The father was in favour of vaccines and asked the court to consider ordering Covid-19 vaccinations once available to the children. As the NHS vaccination programme was at such an early stage, the court decided it was premature to make an order but made clear 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.”

The above provides a heavy hint of the approach that particular judge would be likely to take, though given the strength of feeling in relation to this issue it is likely that any case before the court is likely to be far from straightforward and would be highly dependent on the status of the medical science at the time of any hearing. We shall have to wait and see how this area of the law develops. In the meantime, schools will need to be alive to the additional (and sometimes unforeseen) family dynamics in relation to this issue.

Final thoughts

The priority of any school will always be to ensure that the welfare of children is paramount at all times. Parental disputes have the capacity to cause significant harm to the children concerned, which unfortunately is often far from apparent to the parents. The best approach a school can take is that of neutrality as between holders of parental responsibility, taking no sides. The school should also ensure that each parent is provided with the information they need to exercise their parental responsibility (a further article in itself) whilst providing a safe haven for the children in their care. Most importantly, each case is different – so if necessary, take advice at an early stage.

[1] Children Act 1989, s 3(1)
[2] Re W (Direct Contact), [2012] EWCA Civ 999
[3] Re G (A Minor) (Parental Responsibility: Education) [1994] 2 FLR 964 CA

Please note this content was originally published in the Autumn 2021 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, issued October 2021, and is reproduced with the kind permission of ISBA.

If you require further information about anything covered in this briefing, please contact John Davies or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2021