COVID-19 Vaccinations & Parenting Disputes

If haven’t read enough about COVID already, then you might be interested to know how the Federal Circuit and Family Court approach disputes about children being vaccinated.

The COVID vaccine rollout has been a contentious matter since its inception and it was inevitable that, with return of face-to-face learning coinciding with 5 to 11 year old children becoming eligible to receive the vaccine, we would see a large increase in parents in dispute about whether or not their children should receive the jab.

Generally speaking, parents have equal shared parental responsibility for decisions regarding their children’s long-term welfare – including whether or not to vaccinate. What happens though if one parent wants a child to undergo a procedure, such as a vaccination, and the other does not?

When tasked with deciding whether or not to vaccinate, the Court takes the same approach as it does with all parenting-related decisions – what is in the child’s best interests?

We know from previous immunisation disputes that there are typically three categories, being:

1. Those who ideologically oppose vaccinations;
2. Those who prefer alternative medicines; and
3. Those who are concerned about the adverse reactions the vaccine may have to the child or children in question.

How then does the Court approach a matter where both parents believe that they are acting in the child’s best interests by either having them vaccinate or not?

 

How the Court approaches children being vaccinated? 

Historically, the Court has been inclined to follow national guidelines regarding vaccinations unless there is compelling evidence as to why a particular vaccine would be detrimental to the child in question, especially in states that implemented the “No Jab, No Play” legislation and, whilst it is yet to actually be tested, it is likely that a similar approach would be adopted regarding the COVID-19 vaccine.

That being said, the case law shows that the evidence of medical experts has been favoured. Experts arguing the alternative tend not to be able to rely on adequate scientific research and medical orthodoxy.

Just as a parent wanting a child to get vaccinated would need to provide the Court with evidence that vaccination is in the child’s best interests (or in the alternative, that not vaccinating the child may expose them to harm), a parent opposing a child getting vaccinated needs to provide the Court with evidence that not being vaccinated was in the child’s best interests.

This does not mean, however, that you can simply vaccinate your child without the other parent’s consent. The position adopted by the Court with regards to any parenting matter, including vaccination, is specific to each individual family and, in some cases, each individual child within a family unit. It is therefore not safe to assume that, just because the government supports children receiving the COVID-19 vaccine, the Court would decide that your child should receive it.

It is also important to remember that one of the factors the Court takes into consideration when making parenting orders is the attitudes parents have displayed towards the responsibility of parenthood and their parenting capacity. The Court is unlikely to condone the behaviour of a parent who unilaterally vaccinates their child and is likely to draw certain inferences about what such action says about their attitude towards the responsibilities of parenthood and their parenting capacity which, may in turn, impact the other decisions the Court needs to make such as where a child is to live or who is to make important decisions in the future.

Will COVID-19 be any different?

There are several issues that include:

Underlying Health Conditions

• There is limited research and case law regarding when a child with underlying health conditions gets the COVID jab. The Courts approach will be interesting and caution will be necessary. The Court will possibly find that every child being vaccinated is not necessary but either argument would need to call upon credible expert evidence.

Public Health Interests

• Court’s may be more activist and consider the public benefit of a child getting the COVID jab or the social ramifications if they don’t. Either option is open to the Court under section 60CC(3)(m) of the Family Law Act, and one Judge has already considered these points in the past.

The Child Opposes Being Vaccinated

• The enforceability of an Order for a child to be vaccinated where that child themselves opposes getting the vaccination. This issue arose in an English case and notwithstanding the Order, the time passed, and the children didn’t get vaccinated. How this would play out here would be anyone’s guess, but we dare say that where the stakes are high, the consequences would be too.

 

What do you do?

Whilst it may only take seconds to have your child vaccinated, it could have significant legal impacts if you do so without the other parent’s consent.

Contact Umbrella Family Law . We can help you whether you’re seeking to have your child or children vaccinated or not.