If a few weeks ago we talked about the problems that are beginning to arise around the Covid-19 vaccine and the disagreement between the parents, today we focus on commenting on a recent court decision that rules precisely on this aspect.
The truth is that the trickle of cases is increasing, and traditionally the traditionally the solution of the judges in these cases tends to favor vaccination, although it is possible that, given the fact that the parents’ disagreement between the parents, it is not always the case.Although it is possible that, given the novelty of the vaccine against Covid-19, there may be pronouncements in a different direction.
In this case, the order, issued in Barcelona, is in favor of vaccinating children against Covid-19 despite the opposition of one of the parents.
A Barcelona judge in favor of vaccinating children against Covid-19 despite disagreement between parents
Specifically, the order we are commenting on, issued by the 51st Court of First Instance of Barcelona, resolves for the first time a dispute of a separated couple about the protective measures against the coronavirus of their two minor children, and does so by giving the mother the reason, in favor of vaccinating them and subjecting them to PCR tests.
Among her arguments, the judge emphasizes that the administration of vaccines “does not imply an attack on the physical integrity” of the children.
As a result, the judge granted the children’s mother the power to make decisions regarding protective and preventive measures against the coronavirus. The woman took the case to court after her ex-partner objected both to the vaccination of the children – aged 15 and 16 – and to their being tested for the coronavirus when they showed symptoms of the disease, and informed the school, citing the “great uncertainty” of the measures against the pandemic.
This had caused the children to be reluctant to be vaccinated, because, according to the judge in her order, their father had been gathering information for months about the alleged side effects of the vaccines.
In her order, the judge concludes that the most beneficial solution for the children is “to give the mother the power to decide in relation to pediatric visits and the vaccination of the children” and recalls that the father has not provided “any reason” to oppose this.
In this sense, the judge emphasizes that the administration of vaccines “does not imply an attack on the physical integrity” of the children and that “the benefits of the same not only for the protection of the minors but also for society by avoiding future contagions, are much greater than the disadvantages of their administration”.
Coronavirus vaccine and children: what happens in case of disagreement between parents?
In these cases, the starting point is that, if a parent refuses to give the vaccine to his or her child, the best interests of the minor may prevail, even over the parental authority of the parents, provided that we are in a case in which the child’s health is at risk.
But outside this extreme, the situation becomes more complicated and often ends up in the hands of a judge, given the impossibility of the parents to reach an agreement.
In our country, vaccination is voluntary in almost all cases, except, again, in extreme situations that make it mandatory.
In the case of children, there is the particularity that the minor does not have full legal capacity, so the decision is delegated to their parents or whoever holds parental authority.
In this sense, it is the responsibility of both parents to make this decision, regardless of who has custody, since, even if one of them is the one who is primarily responsible for the care of the child, the parental authority will continue to belong to both of them. It is a different matter if one of them has been deprived of it, in which case the other parent will make all the decisions.
It should be remembered that the guardian/custodian will be free, without the need to inform the other parent, to decide day-to-day living matters (e.g., meal times, type of food, establishment of routines, clothing, etc.).
However, more serious decisions or issues, such as medical issues, fall within the scope of parental authority, which will generally be exercised by both parents.
Therefore, these decisions should be agreed upon.
In addition, it should be borne in mind that emancipated minors or minors over 16 years of age can legally make this decision on their own, since in these cases consent by representation does not apply.
In any case, it is important to try to reach an agreement taking into account the circumstances of the specific case: if the child is a person at risk or if one of the parents or close relatives is, the advice of their doctor, the background and general health situation of the child… If it is not possible to reach a solution, there is the legal way to initiate an incident of parental authority.
If you need help from a family lawyer in Barcelona, contact our office.
