The COVID-19 pandemic has triggered a raft of family law and parental disputes pertaining to child vaccination, parenting arrangements and travel.
The Federal and State governments are actively campaigning to vaccinate as many children (over the age of 5) as possible but have stopped short of mandating it. In consequence, we are seeing a difference in opinions among parents and guardians as to whether or not a child should be vaccinated against COVID-19. In many cases, the decision is so fraught, it has been (as a last resort) turned over to the court to decide.
A pathway to resolve the impasse?
The primary issue in terms of parental disagreement towards vaccination lies with children under the age of 12 as parental or guardian consent is required for any vaccination to be administered.
In such cases, we recommend that family mediators and counsellors are engaged to help to resolve disagreements. These experts will meet with both parents, discuss their viewpoints and try to reach a mutual resolution. Alternatively, parents may choose to consult with a community organisation or the Family Relationship Advice Line.
We also recommend seeking external advice from a neutral third party such as a general practitioner or a specialist immunisation service.
Children over the age of 16 may consent to be vaccinated (or decline give consent)
Teenagers aged 16 years and older are generally considered to have the capacity to consent for themselves and may proceed with the vaccination regardless of parental /guardian stance on it.
What do the Courts say?
History (i.e old cases) would indicate that the Family Court of Australia (now the Federal Circuit and Family Court of Australia (FCFCOA)) generally makes orders favouring child vaccination. These old cases have not tested the COVID-19 vaccine specifically.
The Courts have authority to make an order for a child to be vaccinated. This authority is afforded on the basis that Court can make decisions related to medical procedures and administering a vaccination qualifies as a medical procedure (The Family Law Rules (Victoria)).
In deciding whether to make an order for a child to be vaccinated, the Courts’ paramount consideration is to do whatever is in the best interests of the child. The Court will take into account the individual circumstances of the case and whether vaccination would be in the child’s best interests. For example, if a child had a rare medical condition and medical expert evidence indicated that the COVID-19 vaccination would pose a threat to the child’s health, the Court would possibly decide against the administration of the vaccine.
Historical position on vaccines generally
News platform ‘The Conversation’ reviewed 27 cases involving parental disputes which were heard in Australia between 2002 and 2021. In 21 of those cases, the Court decided in favour of the parent supporting vaccination. In five cases, the Court declined to make a decision due to lack of medical expert evidence, and in only one case was parental responsibility given to the party opposing vaccination. Courts have commonly communicated a view on the individual and public benefits of immunisation, and the fact that potential risks of vaccination are greatly outweighed by the risk of harm from diseases which can be prevented or lessened with a vaccine.
The Nicholes experience – on the ground experience with the impact COVID-19 pandemic is having on families
Since the outbreak of the COVID-19 pandemic in 2020, Nicholes Family Lawyers has assisted clients with a range of pandemic-related family law issues – including disputes over vaccination, return to school arrangements and cases where one parent seeks to prevent the other from seeing the child because the other parent is unvaccinated
Our team of expert lawyers is well equipped to assist you in relation to any family law matters concerning COVID-19.