Amanda Wilson said that, even if a family of a child under 16 years of age agrees at home not to vaccinate their child, it could ultimately be down to the child to decide.
Vaccination appointment letters were being sent out to 12 to 15-year-olds in Scotland from yesterday, with drop-in clinics already open. Those who do not get vaccinated through either of those routes but still want to do so will have a third opportunity to be vaccinated in schools in coming months.
However, under Scottish law, over-12s can give their own consent to medical treatment, even if their parents do not agree – provided the medical practitioner attending them considers the child is capable of understanding the nature and possible consequences of the procedure or treatment.
The stance means children whose families have decided they should not get vaccinated could still go ahead with the jab at school.
Ms Wilson, of Amanda Wilson Family Law in Dundee, said: “Covid vaccinations for this younger age group have understandably proved controversial and divided opinion.
“We have recently heard a lot about the term ‘Gillick competent’. That term has derived from a House of Lords decision from 1986 known as Gillick, which clarified the law in this area and confirmed that children under the age of 16 may be able to provide consent in that situation.
"In Scotland, this has been further cemented in the statute book by the Age of Legal Capacity (Scotland) Act 1991. So this is not a new development in the law.
“So, when it comes to the Covid vaccine, even if parents can’t agree on whether their child should receive the vaccination, if the medical practitioner involved deems the child to be able to give consent – to either receive or refuse – then it is not up to the parents to decide. The child’s views will prevail.”
She added: “This is on a mass scale – it's a huge number of teenagers and parents - and I just don't know how it's going to be handled in practice. I don’t know if we’re going to see a rush of parents trying to get an interdict to stop [their children being vaccinated].
“You could have quite a compliant teenager who normally goes along and does what they're told, but they’ve had a fall out with mum or dad that morning, and they think ‘I’ll do what I want today’. So it's a complete minefield.
"They will obviously be influenced by all of their surrounding parents, teachers, friends, what they see on social media.”
One parent of a 12-year-old girl in Glasgow says she is concerned her daughter could be influenced by friends on the day that vaccinations are offered at school, despite the family having decided at home they will wait.
The mother, who did not want to be named, said while she is vaccinated herself, she would like to wait for more research into the effects of the vaccine on children – particularly surrounding fertility issues in women – before she decides whether or not her daughter should take it.
She said: “I am absolutely not anti-vaccine. My daughter her been vaccinated against everything up until now and I have had the Covid vaccine.
"However, I think the whole vaccination of 12 to 15-year-olds has become a very emotive subject. And I think it's put schools in a very, very difficult position.
"Parental input is almost moot. Kids are very peer pressured.
"So say, for example, if I say to my daughter that I'm just not comfortable with you having this vaccination – and then she goes into school and there's questions from her friends of ‘why are you not vaccinated?’, then she makes her decision based on peer pressure, not based on any scientific fact – and that works both ways for vaccination or non-vaccination.”
The mother added: "I think there is a huge difference in a 15-year-old giving consent and a 12-year-old doing it, it’s a totally different thing.
"At the moment, she would also like to wait a while and see what happens, but when the vaccinators are in school, I think she will be swept up in making a decision based on what everybody else is doing and I don't think she'll stick to her guns.”
A Scottish Government spokesperson said: “A child under the age of 16 may be capable of consenting to medical treatment where they have sufficient capacity, or maturity to understand the nature and possible consequences of that treatment.
“Consent is a process that the NHS carries out in partnership with patients and families thousands of times a day. Consent for vaccination will be no different. It is crucial that young people and their families have all the information they need to make informed decisions. It is very rare for there to be conflict between young people and families in clinical consent conversations but if a patient is considered competent then they can consent to clinical procedures."
She added: “It is essential that children and young people aged 12-15 and their parents are supported in their decisions, whether they accept or do not accept the offer of vaccination. Appropriate information will be made available to enable children and young people, and those with parental responsibility, to understand the risks and benefits as part of the informed consent process prior to vaccination.”