Vaccinating children against the coronavirus
Since 2 July 2021, children aged 12 to 17 can receive a Pfizer vaccine against the coronavirus.
Vaccinating children in general
Judges consider vaccinations under the National Vaccination Programme to be medical treatment, intended to protect children from contracting a disease, according to case law (see for example: Rotterdam District Court 14 January 2019, ECLI:NL:RBROT:2019:693). The starting point is that medical treatment requires the consent of the patient. For minors, this is regulated in the law as follows.
For children up to 12 years, not the child’s consent, but the consent of the parents or guardians in authority is required. For children from 12 to 15 years, the children themselves must give permission for a treatment (for example a vaccination) and also the permission of their parent(s) in authority is required.
If the parents do not wish to give their consent, the treatment can still be carried out if it is clearly necessary in order to prevent serious harm to the child (in the case of the coronavirus, given the current state of knowledge, this will not be the case). In addition, if the child continues to have a well-considered wish for the treatment even after the parents’ permission is refused, the treatment can still be carried out (see article 7:450 paragraph 2 of the Civil Code).
In the event of a discussion between the parents and the child about whether or not to have the vaccination, a child from the age of 12 who persists in his/her position may still be given the vaccination.
Parents have a different opinion
In practice, parents (especially if they are no longer together) sometimes disagree about whether or not their children should be vaccinated. If both parents have joint custody, the court can grant substitute permission at the request of one of the parents (Article 1:253a of the Civil Code).
Case law shows that a request for substitute consent for a vaccination is granted in most cases if it concerns a vaccination from the National Vaccination Programme (see for example: Court of Appeal of The Hague 30 January 2019, ECLI:NL:GHDHA:2019:331).
Vaccination against the coronavirus?
As with other vaccinations, children aged 12 to 15 need their parents’ consent for the corona vaccination. Children from the age of 16 can decide on this themselves.
Recently, a 12-year-old minor applied to the court through the informal court route and requested substitute consent for vaccination against the corona virus. The minor himself wanted to be vaccinated because of the risks of corona and to have unencumbered contact with his sick grandmother. The mother gave the minor permission. The minor’s father did not wish to give permission because of the risks the vaccine might entail. On September 21, 2021 (ECLI:NL:RBNNE:2021:4096), the District Court of Northern Netherlands granted the minor substitute consent for the vaccination in view of, among other things, the positive advice of the Health Council and the interest of the minor. On October 1, 2021 (ECLI:NL:RBNNE:2021:4289), the same court granted substitute consent to a mother of two minors over the age of 12, who indicated before the court that they wanted to be vaccinated.
Children under 12 years of age
The question is how judges will deal with a request for substituted consent for a vaccination against the coronavirus for children under 12 years of age, since the latter do not have a say in this (legally speaking). In my opinion it is important whether the Health Council will also recommend vaccination for this group of children and also whether the vaccination will be included in the National Vaccination Programme. Vaccinations should protect children from infectious diseases. It remains to be seen, in my opinion, whether the vaccination against the coronavirus is intended to protect children themselves, as the coronavirus generally has a mild course in children. Former children’s ombudsman Marc Dullaert has expressed concerns about this and indicated that vaccinating children under the age of 12 may violate the UN Convention on the Rights of the Child.
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