COVID-19 vaccine for under-12s will create new wave of legal battles between disagreeing parents, lawyer says

While children under age 12 can not yet be vaccinated against COVID-19 in B.C., family lawyer Alex Boland says some parents with opposing opinions on the issue are already at each others' throats over it.

Boland, who is based in Kelowna, B.C., says the question of whether or not to vaccinate children is already causing couples to divorce and polarizing some parents with shared custody agreements. 

Both Pfizer and Moderna are conducting trials testing the effectiveness of their COVID-19 vaccines in kids under the age of 12. Pfizer has said it expects to send its trial data to U.S. regulators in September for emergency use authorization.

Moderna also hopes to produce data on its trials with younger children sometime in the fall, though that may not happen until early 2022.

Boland says he is already seeing a lot of activity in his office — but when children are eligible for a vaccine, he expects a flood of new family battles will begin.

"It will have a huge effect," said Boland, speaking Thursday on CBC's Daybreak South. "We are as busy as we've ever been and that doesn't show any signs of slowing down."

Vaccines, he says, have been a hot button issue in custody cases for a long time and the general trend is for courts to side with public health policies. He expects the same to happen concerning COVID immunization.

"The court is not second-guessing government on this," said Boland, though he adds that exceptions might be made for a child with compromised health issues who the vaccine might pose a risk to.

He predicts judges in other provinces will also align their rulings with government policy and does not expect to see radical differences in decisions made across the country.

And in some cases, children in B.C. can opt for a vaccine without parental permission.

Under the province's Infants Act, a child who is assessed by a health-care provider as being capable to give consent is called a "mature minor" and may make their own health-care decisions independent of their parents' or guardians' wishes.

"They don't actually need their parent's consent," said Boland.

There is no set age for when a child becomes capable, but, according to the provincial government, common practice is for parents or guardians of children below Grade 9 to give consent for their child to be immunized. However, children in Grade 9 and up are given the opportunity to consent for themselves.

If a child refuses a vaccine which their parent or guardian has consented to, they must be informed of the health risks of rejecting it.