Parental authority of a minor child is usually exercised jointly by both parents in case of separation. However, judges are withdrawing the father or mother against vaccines from making decisions about the minor related to psychological and medical care.
What happens when the parents of a minor disagree on the decision to vaccinate the child? It is a controversial issue, since in Spain vaccinating is not mandatory but rather a recommendation.
The courts are receiving more and more cases of this type, almost all of them framed within processes of breaking up a relationship, and ruling against the parent who is contrary to vaccination. Justice is aware that the lack of immunization for a significant sector of the population can have catastrophic consequences for the rest of the citizens. In their cars they remember that the World Health Organization has guaranteed that they are safe and that their benefits are undeniable. In this sense, many judges understand that vaccines are useful for the health of minors and that it is a measure in accordance with their interests, a reason that should guide their decisions.
Recently, the Provincial Court of Murcia has supported the request of a father to vaccinate his children, since the mother who held custody refused to do so, as she distrusted the safety of the Covid vaccination. The family court had agreed with the parent, but the woman appealed the decision.
In the case reviewed by the Murcia magistrates, it is proven by an expert report that the mother was against her daughter’s use of masks at school because it was harmful to her health, in addition to opposing her vaccination against Covid. The expert’s report also highlights that the mother provided a vegetarian diet to her underage daughter. “In this case, the aforementioned expert report refers to the mother’s own statements regarding the vegetarian diet that she provides to the minor, as well as in relation to her position against the use of masks by her daughter in the school because it is harmful. for your health, and your opposition to vaccination against Covid-19”, says the sentence.
“The question of whether or not to vaccinate a minor is a matter directly linked to parental authority. We had to request judicial authorization for it, ”explains María José Parra Martínez, her father’s lawyer.
Although the sentence (the text of which can be consulted here) establishes the joint exercise by both parents of the parental authority of the girl, it confirms the attribution to the father of his exclusive exercise regarding psychological and medical matters of the minor, including decisions that affect their vaccination and feeding.
The judges, in order to justify the withdrawal of medical care from the parent who is contrary to vaccination, are based on the predominance of the superior interest of minors over any other, including that of their parents. Literally, they believe that the court’s decision “constitutes a correct and accurate pronouncement that guarantees the interest of the minor.”
voluntary vaccination
In Spain there is no obligation to vaccinate. The establishment of a vaccination schedule, which may vary depending on the autonomous community, is a simple recommendation, so the final decision corresponds to their parents.
When the discrepancy between the two parents is raised, the judges are increasingly clear: the decision to vaccinate cannot be left to the discretion of one of them and the best interests of the minor in favor of their health must prevail in the sentence.
In this context, the Supreme Court, in its ruling of February 2012, considers that “parental authority constitutes a office that is attributed to the parents to achieve the fulfillment of the interest of the minor”.
The withdrawal of the anti-vaccination power to decide on the medical care of their minor children already has enough jurisprudence in the courts, even with sentences prior to the pandemic caused by the coronavirus.
In 2019, the Provincial Court of Vigo responded to a father’s request to vaccinate his children in accordance with the Galician vaccination calendar, given that the mother, who had custody, refused to give the doses scheduled by the health system. public. The youngest of the children, seven years old, had never been vaccinated; the eldest, 11, only twice. Given the disagreement of the parents, the judges, to safeguard the best interests of the minor children, decided to attribute the decision to vaccinate to the father.
The order of the Galician court (the text of which can be consulted here) establishes, following all international, state and regional regulations, that the best interest of the minor must be the determining criterion for the adoption of any measure that affects them in relation to their parents.
The magistrates recall that the World Health Organization (WHO) has assured on many occasions that vaccines are safe. “It is much easier to suffer serious injuries from a vaccine-preventable disease than from a vaccine,” the ruling cites. In accordance with these parameters, the court concludes that vaccines not only do not cause harm, but that their benefits “are undeniable both at the individual and population level.”
In the case of the serum against Covid, the Court of First Instance 51 of Barcelona was one of the first to rule on the discrepancy of some parents when it came to vaccinating and doing PCR tests on their two children aged 15 and 16. The court’s resolution agreed with the mother, a supporter of both measures, to prioritize the interests of minors.
family lawyers
The Spanish Association of Family Lawyers (AEAFA) appeals “to the consensus between the parties” and the “well-being of the boys and girls” to avoid having to resort to the courts, which could delay the decision on whether to vaccinate for up to a year or not the children.
Family expert lawyers consider that, as vaccination affects the parental authority of minors, if there are disagreements between divorced parents about the health care of children from 12 years of age, they must go to court to settle the controversy, as provided for in the Article 86 of the Voluntary Jurisdiction Law.
This does not apply if one of the parents has been judicially assigned the exclusive exercise of parental authority. In addition, married parents can also go to court to settle the dispute. However, adolescents 16 years of age or older have the legal capacity to accept or refuse vaccination for themselves.
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