Covid-19 has been a contentious issue from the very beginning of this pandemic, and it does not appear to be slowing anytime soon. With the Government announcing that all children aged 5-11 are now eligible to receive two doses of the Pfizer vaccine eight weeks apart from 10 January 2022 disputes between parents around vaccinations are on the rise.
The National Covid-19 List, established by the Federal Circuit and Family Court of Australia (“the Court”), deals exclusively with urgent family law disputes resulting from the Covid-19 pandemic. One of those issues is the vaccination of children against Covid-19. The Covid-19 List has seen an increase in the number of applications to the Court regarding disputes around covid-19 vaccinations since the recent announcement.
There is a presumption, that in the absence of any Orders, parents have equal shared parental responsibility around the major long-term decisions for their children. Major long-term issues are things like:
- religion and cultural upbringing;
- the child’s name; and
- changes to the living arrangements of the child.
Vaccinations are one of those major-long term issues covered by parental responsibility under health. Parents are encouraged to communicate and discuss any major decisions regarding their children. While the issue of covid-19 vaccinations and children remain a hotly debated issue, there is currently no case law to guide us, and we are yet to see how the Courts will deal with this particularly vexed issue.
What does the case law tell us?
Because this is unchartered territory, we can only look at how the Courts have dealt with the issue of childhood vaccinations in the past. Historically, Courts have leaned towards making orders for children to be vaccinated as it was in the child’s best interests. While the Court has no fixed position in relation to this issue, the Courts will always start with what is in the best of the child.
In the 2021 case of Covington & Covington, the Court was asked to make orders granting the father permission to have his 10 year old child vaccinated. While this case did not deal directly with Covid-19 vaccines, it does offer some guidance on children and vaccinations in general.
The facts were that the father wanted the child to be vaccinated and the mother was opposed to vaccination altogether; the child had received no vaccinations. Ultimately orders by consent were made that the child be vaccinated as recommend by the child’s doctor or treating medical professional.
The mother later made multiple appeals seeking to have orders set aside citing that she consented under duress and that her child had a “constitutional right” for freedom from mandatory vaccinations and therefore the Family Court lacked the power to make orders surrounding mandatory vaccinations.
The Court dismissed the mothers appeal based on the mother’s case having no merit.
The 2011 case of Mains & Redden illustrates the need for medical evidence be provided by trained specialists and supported by empirical data. In this case the mother was opposed to having their child vaccinated and while she provided evidence from a general practitioner with over 27 years’ experience, she also provided evidence from another doctor who held a PHD but no other medical qualifications. Due to the rather outlandish remarks made by this doctor, unsupported by empirical evidence, it caused concern for the Court. Ultimately the Court found that the mother would go to any lengths to support her position that vaccination was not in her child’s best interest.
The 2012 case of Duke-Randall & Randall, the Court made orders for the vaccination of two children aged 8 & 7. The mother was opposed to vaccinating the children. The father relied on extensive medical evidence as to the benefit of immunisations for the children.
Cases overseas are beginning to emerge relating to Covid-19 vaccinations and children. One such case out of the UK (M v H v P and T  EWFC 93) involved a father who was seeking permission to vaccinate his two children aged 4 and 6 in accordance with England’s National Health Service Vaccination Schedule. The children had not been vaccinated at all and he was seeking permission to vaccinate against the measles and that any future Covid-19 vaccinations also be included.
The mother was opposed to vaccinations for many reasons, but one of the reasons being any potential side effects of the vaccinations outweighed the effects of the disease and that the children could have been naturally immune. Both sides presented evidence from medical experts supporting their positions.
Ultimately the Court made an Order that the children receive their vaccinations in line with the National Health Service List but deferred its decision in relation to the children receiving the Covid-19 vaccination only because the schedule for covid-19 had not yet been determined. Importantly, the Court made it very clear that should the National Health Service Schedule List include the Covid-19 vaccine it would not hesitate to make orders for the vaccination of the children against Covid-19.
Where the Courts have not made Orders for the vaccination of the children, have involved a lack of evidence and failure of the party to present an adequate case.
What if we cannot agree?
If you and the other parent cannot reach an agreement around the covid-19 vaccination do not go ahead and have your child vaccinated and hope for the best. Courts do not look favourably upon parents that vaccinate their children without the knowledge or consent of the other parent. You should take steps to try and resolve the dispute through dispute resolution services before making an application to the Court.
The Court will only make an Order if it is in the child’s best interests and the Courts can only make a decision based on the evidence before them. It is clear from the case law, that if you intend to take the issue of vaccination to the Court, whether it be regarding childhood immunisations in general or the Covid-19 vaccination, ensure that you have evidence to support your position, particularly medical evidence.
If you need any advice regarding the vaccination of your children, please do not hesitate to contact the team here at Miller Sockhill Lawyers.