The coronavirus has led to many questions. So is the question of getting oneself and/or one’s children vaccinated. With divorced parents exercising joint custody, this can be a topic of discussion. This is evident from the recent ruling of the Amsterdam court.
Vaccination is classified as medical treatment. For children under the age of 12, this requires permission from the custodial parents. If parents cannot agree on a particular treatment and one parent refuses to give consent, the court can be asked for substitute consent for the treatment in question. The judge then makes a decision, determining whether consent is in the child’s best interest.
In this way, the judge in Amsterdam also tested the request of the man who wanted his infant son to be vaccinated against the coronavirus, but did not receive his ex-wife’s consent. The man believed the little boy should be vaccinated to protect him from infection because the child would never have had corona, and uninfected children would be at risk for MIS-C, a disease that can cause intense inflammation in vital organs. In addition, the father wanted to protect the grandparents’ fragile health. Vaccination of the young boy would reduce the risk of infection.
The judge ruled in part based on a Health Council report that it was not in the child’s best interest to consent to the vaccination. This is because the importance of vaccinating does not lie in not becoming infected with the coronavirus but in protecting against severe course of the disease and other complications.
The court concluded that vaccination was not necessary to prevent serious danger. To that end, she contributed that (i) the opinion of the Health Council had shown that the omikron variant brought only mild symptoms in most young children; and (ii) that although testing was always negative, the likelihood that the child had antibodies was high and thus the likelihood of MIS-C is/was very low.
In doing so, the court ruled that the risk to the grandparents could be overcome by taking home tests. Finally, according to the court, vaccinations were also not necessary to engage in activities for which one must have been vaccinated, now that society has reopened fully.
Given the above, the court saw no serious need to vaccinate the child and did not consider it in the child’s best interest to give the father substitute consent to the vaccination. It noted that the conclusion may be different if a more dangerous variant of the virus develops or if new scientific research reveals other risks.
This ruling again shows that the judge’s granting of substitute consent depends on all the circumstances of the case and that the best interests of the child are the starting point for the assessment.
This article was written by mr. Kim van der Bijl, associated with the Law of Persons and Family Law Practice Group.