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Can parents prevent the State from vaccinating children removed from their care?

A Melbourne mother is currently fighting an order handed down by the Children’s Court compelling her children to be immunised whilst in the temporary care of the Department of Health and Human Services.

The decision was appealed to the Supreme Court on Wednesday 22 November 2017, and, if successful, may grant parents the power to prevent their children in state care from being vaccinated.

The appeal comes after the Children’s Court ruled children under an Interim Accommodation Order (IAO) could be immunised by the Department of Health and Human Services (DHHS).

The Court is yet to determine whether there is a safety issue affecting the children, warranting long term removal from their parents care.

The appeal raises serious questions in regards to whether the government and the Children’s Court can make major, long term decisions about children while they are in temporary state care including schooling, religion and medical procedures. The question to be answered is whether the court can grant power to the government to supersede parents’ wishes, contrary to the current state of the law.

Under the Children, Youth and Families Act 2005 (The Act), the DHHS must include parents in the decision-making process about their children. The Act also prevents the DHHS from making major long-term decisions where a child is under an IAO, and forbids the Secretary from making a long-term decision in regards to a child under an IAO if the parents disagree with the decision.

Currently in the wider Victorian community, the No Jab, No Play legislation prevents unvaccinated children from attending childcare and kindergarten; and recent amendments have resulted in immunisation statements from the Australian Immunisation Register being the only documents accepted as evidence of a medical reason a child not be immunised. This recent amendment further strengthened the state government’s stance on the issue, preventing children from being allowed through loopholes in order uphold their parents’ ideological beliefs. Under federal law, parents who do not vaccinate their children are liable to have their family tax benefits and childcare subsidies withheld.

The appeal is being met with aversion from many parties including health experts and state ministers, including Minister for Families and Children, Jenny Mikakos who reiterated her stance that it is in the best interests of the child to be vaccinated.

Many are concerned that the move by the Court could set a ‘dangerous precedent’ for children in state care. Moreover, the decision of Legal Aid to represent the appellant has been met with backlash, with many dissatisfied with their agreement to represent the young mother. Victoria Legal Aid (VLA) has defended its funding of the case, saying the case has no effect on immunisation policies, but will clarify parental rights for families involved in the child protection system. VLA Family, Youth and Children’s law executive director Nicole Rich argues that the VLA’s involvement is ‘not about taking a position on immunisation’, but rather is a recognition of the ‘important public health directive for children to be immunised’. The case is being funded under the VLA’s Public Interest Strategic Litigation guidelines, which covers cases that carry significant public benefit by seeking to:

  • Clarify or test the scope of existing legal rights and duties;
  • Challenge the accepted interpretation of legal rights and duties;
  • Establish new legal rights and duties in the common law or under statute;
  • Improve administrative decision making, and the efficiency and fairness of the justice system

Despite opposition from many party members, the state government is unable to block the appeal due to the position of Victoria Legal Aid as an independent body.

The Court is set to hand down their decision in the coming week.


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