In this post we comment on a recent ruling in which, contrary to what has happened during most of the pandemic, a father who refuses to vaccinate his 6 year old son is given the reason, against the position of the mother, in favor of the inoculation of the minor.
According to the ruling, issued by the Court of 1st Instance of Valencia, taking into account the best interests of the child, since the vaccination of a child cannot be justified in the social benefit. If you need help from a family lawyer in any conflict about the health of your children or in any other case of conflict with the other parent, please contact us.
Judges begin to take position in favor of not vaccinating minors
The car must be framed in a context in which the severity of this disease is gradually decreasing. Thus, the order is based on the idea that the effects of contagion in children between 5 and 11 years of age pose a lower risk than the possible side effects, as yet unknown, of the administration of the vaccine. Therefore, this is a decision to be taken into account for future conflicts of this type: if at first, the judges’ position was clearly in favor of vaccination in case of parental disagreement., things change as the coronavirus becomes normalized in our society. It should be recalled that the different autonomous communities began to vaccinate children between 5 and 11 years of age as of December 15, The consent of the parents or legal guardians is required. In case of discrepancy, it is necessary to go to a judge, with the assistance of a lawyer, who will decide how to proceed in each case.
In this particular case, there was no disease that contraindicated the administration of the vaccine, but neither was any report provided to support the need for vaccination in view of her age.
The mother relied on the risk of contagion to which the child was exposed at school and in the context of his extracurricular activities, as well as the direct contact he had with his grandparents.
This criterion serves as a precedent for later ones and, in our opinion, it is more difficult at this stage to predict which way a judge may decide on whether vaccination is advisable or not.
In any case, it will be necessary to consider the specific case and, especially, the existence of some type of ailment in the child that advises its inoculation.
It may serve as a guide to know that, in this case, the Public Prosecutor’s Office also sided with the father, defending the position of non-vaccination.
Also the fact that, as stated in the order, there are discrepancies within the pediatric medical community itself as to whether or not it is advisable to inoculate children under 12 years of age.
This criterion is supported by the fact that, according to data from the Ministry of Health itself, the effects of Covid-19 infection in minors are, in 99.7% of the cases, mild or asymptomatic. The most serious cases are almost exclusively limited to patients with previous pathologies.
In this case, the parent was in favor of vaccinating the child according to the official schedule: this is a case in which the doubt is related exclusively to the Covid-19 vaccine, the long-term effects of which are still unknown.
It also takes into account the various relaxation measures agreed by the different governments throughout the country -both central and regional-, which is directly related to a lower risk of infection and a reduction in the number of serious cases of Covid-19. Thus, the order places the best interests of the child above the possible social benefit of his or her vaccination. These are the arguments defended in the order: “From the above it can be seen that in children the percentage of severe cases of Covid 19 is low and is usually associated with the pre-existence of a previous pathology, presenting mostly a much milder clinical picture than in adults, with 99.7% of cases developing a mild picture, half being asymptomatic, only 0.21% of cases required hospitalization and 0.016% admission to the pediatric ICU, of those admitted more than 50% had previous pathology.
This means that there is a low probability that a minor with Covid will develop severe clinical symptoms.
On the other hand, although the possibility of suffering persistent covid is striking, there is no detailed study on the incidence of this pathology and its consequences, and the real effects and extent of the same are unknown.
To this we must add that there is no doubt that the situation is now much less serious than it was months ago, being notorious that the symptomatology and severity of the disease has decreased significantly, and with it the hospital admissions and deaths, the health authorities having relaxed the restrictions that previously existed, coming to occur the ‘influenza of Covid’, as it has been called, which evidences the weakening of the disease.
There is no doubt that there is still much to be known about this disease, since it is a new virus that is being studied at an accelerated pace, without a sufficient time perspective to know it in depth, which can be extended to the vaccines that have been developed which, although they have shown signs of being effective, have been developed urgently and quickly, shortening the deadlines that are usually required for the approval of this type of drugs, so that there is no exact knowledge of the effects that these vaccines can produce.
In fact, it is not even known how many doses are necessary to obtain immunity, since it is known that new doses are prescribed and even the periodicity of these doses is changed.
In view of such facts, we must be cautious when deciding whether or not to vaccinate the minor.
Considering that there is no medical report advising the vaccination of (….), that there is no evidence that she has any previous pathology from which it could be derived that, in case of suffering from Covid, she has a higher risk of developing severe symptoms, that up to now Covid 19, in children from 5 to 11 years old, has developed with mild symptoms, being a minority of severe ones, that most of them suffered from a previous pathology, that currently the severity of the symptomatology has notoriously decreased and given that there is no clear knowledge of the side effects that the vaccination may have, we must deny the request made by Mrs. (…) in order to attribute to her the right to be vaccinated, the right to be vaccinated. (…) in order to grant her the power to decide on the vaccination of the minor, as the arguments of the parent are more solid, at least at this time, than those of the mother.
Finally, it is worth mentioning that, since the interest of the minor must be assessed individually, the vaccination of a minor cannot be justified in the social benefit that it may entail due to the lower transmissibility, especially taking into account that, according to the studies referred to above, the transmission of minors is much lower than that of adults”. If you have any doubts about any matter related to Family Law, consult our team in Barcelona: we will be happy to help you.
