Vaccination for 5-11 year olds: why was double parental authorization introduced?

While the vaccination of 5-11 year olds is getting off to a slow start, parents find themselves in the front line to decide whether or not to consent to this vaccination. Indeed, following a request from the Council of State, the agreement of the father and mother will now be required, the Ministry of Health announced Thursday, January 6. While the opinion of only one of the two is sufficient for the following age group, namely 12-17 years old.

From a legal point of view, this is not without posing a certain number of problems, especially when the parents are separated, as observed daily by Maître Héloïse Kawaishi, lawyer and mediator in family law, co-founder of mapensionalimentaire. com. She agreed to answer LCI’s questions.

As a general rule, can a parent immunize their child without the consent of the other parent?

Me Héloïse Kawaishi: With regard to the exercise of parental authority, it is necessary to differentiate between the usual acts which do not require the agreement of both parents to act. The Aix-en-Provence Court of Appeal defined it as being “acts of everyday life, without gravity, which do not engage the child’s future, which do not give rise to an essential principle assessment and do not present any apparent serious risk for the child, or even if they are of a material nature, acts forming part of an uncontested prior practice “. It is therefore an act which must be punctual as well as of limited scope. For example, medical consultations, medical circumcision when it is not linked to a ritual, the removal of a single wisdom tooth, or vaccination against measles have been considered as usual acts.

Conversely, non-usual acts are acts that are important, serious, unusual or which affect the child’s future with regard to his health, safety or education and require the agreement of both parents, so that for be practiced, they must be subject to their consent. For example, a surgical operation has been considered as unusual acts insofar as it is an act injurious to bodily integrity or the prescription of an antidepressant for a child.

Thus, for the non-compulsory vaccine against Covid-19, we must reason in the same way, that is to say analyze in particular the history of the minor child, the essential nature of the act, the vulnerability of the child. child, the risks involved, the adverse effects, the recommendations of the health authorities on the vaccine …

In your opinion, why did the Council of State consider that vaccination against Covid-19 is an unusual act for 5-11 year olds (requiring the agreement of both parents) and usual for 12? -17 years old (without the agreement of the other parent)?

It is still the famous precautionary principle. Since this vaccine is not mandatory, the side effects will not be known in the long term, but at the same time, we know that children are not qualified as people at risk and given the public health debates current, the Judges have ruled. But in my opinion, we are moving in the coming months towards a usual act also for 5-11 year olds. Firstly, because we are only asking for a certificate on the honor of the other parent, which is a bit light anyway. Wouldn’t a written authorization from the other parent have been more protective of his rights? Some might indeed challenge the respect of the parental authority of the other parent.

What to do in the event of a conflict between the parents?

In the event of disagreement on such a decision therefore reverting to the exercise of joint parental authority, it is necessary, first of all, to favor dialogue between the parents, understand each other’s explanations and keep a written record so that a decision is made, in the best interests of the child (for example, whether or not vaccination creates a danger to his or her life). In the absence of an amicable agreement, it is always possible to refer the matter to the Family Affairs Judge of the Judicial Court in the jurisdiction of the child’s domicile to request either to be authorized to vaccinate him or to have the other parent dismissed. his request for vaccination. It is up to him to decide and assess whether it is a usual act or not. However, since vaccination against covid-19 is not compulsory at the moment, it seems unlikely that he will be able to order it.

Furthermore, if a parent vaccinates their child without informing the other and this is considered an unusual act, their liability may be incurred. Of course, when parental authority is exercised exclusively by one of the parents, only the legal representative will have to consent to the act, the other parent only benefiting from a right to information.