Last week the UK's medicine regulator approved the Pfizer-BionTech vaccine for children aged between 12 and 15. The Scottish Government is now awaiting confirmation from the Joint Committee on Vaccination and Immunisation on whether it should begin vaccinating children and has indicated that it will roll vaccines out if the Committee recommends it. If the Scottish Government proceeds following expert advice, then it is likely that some children who are offered the vaccine may be faced with parental opposition to their decision to be vaccinated.

So what happens when there is a disagreement on whether a child should be vaccinated?

The Age of Legal Capacity (Scotland) Act 1991 provides that someone has full legal capacity to make decisions from the age of 16. However, even under the age of 16, a young person can have the legal capacity to make a decision and give consent on a healthcare intervention, provided that they are capable of understanding its nature and possible consequences; this is a matter of clinical judgement.

In the event that a child is not able to consent to their own medical treatment, parental consent will be required. This stems from the legal responsibility of parents to safeguard and promote their child's health, development and welfare. In addition to this responsibility, parents also have a duty to consult with one another in relation to any major decisions in a child's life and both points of view are equally important. Indeed, one parent can act independently of the other in consenting to medical treatment for a child which of itself can lead to difficulties of parents disagreeing about the best course for their child.

Allowing a court to decide whether to vaccinate a child

If parents disagree on whether to vaccinate their child, and their child is unable to provide their own consent, an application can be made to the court to allow the vaccination to proceed. Before reaching a decision, the judge will consider a range of factors, including whether or not the vaccination is a reasonable decision for a parent to take; whether the vaccine is recommended by the Government (this may soon be the case with the COVID-19 vaccination) and whether the decision to vaccinate is supported by science. The court may also require evidence from medical experts and/or detailed expert reports to reach a decision.

Such cases are likely to be fraught and by bringing this before a court places a life changing decision in the hands of a third party who only has a snapshot of a particular family's life. It also places responsibility on the judge to make a medical decision for a child despite having no medical qualifications. The judge will need to be guided by the medical experts who may have opposing opinions on the vaccine before reaching a decision based on the evidence presented. By the very nature of medical intervention cases, only one party can "succeed" and the effect of having a decision imposed on a child against one parent's wishes may fracture family relationships and polarise parties further.


One alternative to litigating is for parties to try and resolve the issue through mediation. Mediation is a form of dispute resolution which is focused on finding a solution to problems in an amicable way. It provides a neutral forum for parents to sit down and discuss the issue constructively with a view to reaching a positive solution that works best for the child and family.