December 3, 2023
The parents have joint custody of their daughter, born in 2012. The father supports vaccinations in accordance with the recommendations of the Standing Vaccination Commission at the Robert Koch Institute (STIKO). The mother rejects such vaccinations out of fear of vaccination damage. The child lives with the mother.
The father wanted to have his daughter vaccinated despite the mother's refusal and therefore went to the family court.
In its decision, the Federal Court of Justice clarifies:
(1) “A vaccination can be either as A matter of daily life be classified. The result of this classification would be that the parent with whom the child is currently staying can decide alone whether the child is vaccinated or not, Section 1687 (1) BGB. Or a vaccination stopse Matter of thus of considerable importance There for the child that both parents have to decide on.
On this question, the Federal Court of Justice clarified that standard or routine vaccinations are also a matter of considerable importance for the child. The Federal Court of Justice justifies this decision by saying that both vaccination damage and the risk of contracting an infection due to lack of vaccination protection would warrant this assessment.
(2) Because of the parents' differing views, there is a situation in which there is no decision for the child. According to Section 1628 sentence 1 BGB, in such a situation, the family court may and must transfer the decision to the parent whose proposed solution is better suited to the best interests of the child.
(3) The decision whether a vaccination is more in the best interests of the child or the conscious decision not to have the vaccination carried out at the moment requires medical expertise, which the family court usually does not have. Nevertheless, the Higher Regional Court said literally: “It is not necessary to obtain an expert opinion because the recommendations of STIKO should be taken as a basis. These would be developed and updated according to the state of science. As the Federal Court of Justice explained in the context of medical liability, the official vaccination recommendations are based on the public interest of basic immunization of the entire population in order to avoid an epidemic spread of diseases. The health authorities have already weighed up the risks of vaccination for individuals and their environment on the one hand and the risks of non-vaccination for the general public and individuals on the other. This should be followed with regard to STIKO's vaccination recommendations. These could serve as guidelines when defining health concerns, insofar as they also determine the best interests of the child. ”
The Federal Court of Justice shares this opinion and states literally:
“The Standing Vaccination Commission is set up at the Robert Koch Institute. As an expert body in accordance with Section 20 paragraph 2 sentence 3 FSG, it has the task of making recommendations for carrying out vaccinations and other measures for the specific prophylaxis of communicable diseases and of developing criteria for distinguishing a usual vaccination reaction and health damage that exceeds the usual extent of a vaccination reaction. The purpose of infection protection is to prevent communicable diseases in humans and to prevent their spread (see § 1 1 paragraph IFSG). Vaccinations therefore serve the good of the individual with regard to a possible illness and, in terms of the risk of further spread, the common good. Even with the latter aspect, they have a connection to protecting the individual best interests of the child, because the child — even if it is not yet of vaccinable age — benefits from vaccinating other people, in particular other children, and the resulting reduced risk of infection. STIKO's vaccination recommendations have been recognized as a medical standard in the case law of the Federal Court of Justice. This is based on the assessment that the benefits of each recommended vaccination outweigh the vaccination risk. ”
With the decision of the Federal Court of Justice, it is clear, on the one hand, that no parent may have their child vaccinated without the consent of the other parent. If the parents cannot agree, the family courts will give the vaccination advocate the decision-making authority on the vaccination issue alone, as long as there are no particular vaccination risks in individual cases.
