Whether or not to vaccinate a child is becoming an increasingly contentious area as more parents become vocally opposed to vaccinations. This is certainly the case for separated families where one parent opposes vaccination of their children and the other parent seeks it.
Whether or not the upcoming COVID-19 vaccination will bring similar disputes is yet to be seen in the Family Law Courts. In this article, we review how the Courts deal with vaccinations generally and what has occurred overseas to date with respect to the COVID-19 vaccination.
The question of whether to vaccinate a child is one of “parental responsibility” because it is considered a long-term issue for a child. Long term issues include education, health, religion, the child’s name, living arrangements that affect the time spent with the other parent, etc.
A Court can order that one party have sole parental responsibility (that is, sole decision-making power about a child’s long-term issues) or that both parties have equal shared parental responsibility (which requires them to consult and reach a joint decision together about the long-term issue). Very significant evidence is needed for a Court to order that one party have sole parental responsibility as being in the child’s best interests (the paramount consideration in all parenting matters).
If the parents cannot agree on whether a child is to be vaccinated and one party does not have sole parental responsibility, then the Court will decide based on the children’s best interests.
The Court tends to order that a child be immunised in accordance with the National Immunisation Program Schedule in the absence of any specific scientific medical evidence that a particular vaccine is detrimental to a particular child’s health.
This position is further strengthened where states across Australia introduced “No Jab, No Play” laws.
Children cannot access public child care services without evidence of their vaccination being up to date, or catch-up vaccination program or have an approved medical exemption from that immunisation. Families that do not vaccinate their children without this evidence also impact a parent’s ability to access Family Tax Benefits and child care assistance.
The short answer is no.
Even if the Court generally tends to favour vaccination, the Court views each case in relation to each particular child and why it would be in a child’s best interests to be vaccinated or not to be vaccinated.
The Court also does not tend to look favourably on parents that vaccinate their children without the knowledge or consent of the other parent because it reflects on that parent’s attitude to the responsibility of parenthood and their parenting capacity. This, in turn, can affect other decisions in parenting disputes such as whether one parent should be granted sole parental responsibility regarding a child’s long-term issues or where a child lives, etc
There has yet to be a case in Australia regarding the COVID-19 vaccine.
In a case in England, the father sought to have the two children, aged 6 and 4, vaccinated in accordance with the National Health Service vaccination schedule. In particular, he sought vaccination against measles and to include future vaccinations against the virus responsible for COVID-19. The mother opposed this for several reasons, but mainly that the children could have been naturally immune and the potential effects of vaccinations outweighed the effects of the diseases in question.
In December 2020, the Family Court in England deferred the decision of whether the children should be vaccinated against COVID-19 only because the schedule for the COVID-19 vaccination, at that time, was uncertain.
The Court ordered the vaccination of the children pursuant to the National Health Service List. However, the Court left it clear that it will not hesitate to order a child receive the COVID-19 vaccination once added to the National Health Service List of routine vaccines in the absence of scientific medical evidence that the COVID-19 vaccine in question poses a risk to the child.
In this particular UK case (M v H v P and T  EWFC 93), the Court ordered that the children be vaccinated in accordance with the routine schedule and granted the father’s application to that extent.
While the Australian Courts may adopt a similar approach, each child is unique with their own set of circumstances and it is always best to receive legal advice if there is a dispute about vaccinations of children.
Certainly, time will tell whether the upcoming COVID-19 vaccine will be mandatory and/or listed under the National Immunisation Program Schedule or if a particular child, parent or significant carer has certain health issues – all of which are relevant when determining what is in a child’s best interest and the question of the vaccination.
The Court will consider several factors of the COVID-19 vaccination when determining parenting disputes on the issue of vaccination. It will ultimately rest on the best interests of that particular child. Obtaining legal advice early and certainly before making any decisions, is important.
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Emera Smith.