Kids, COVID-19 Vaccinations & Parenting Disputes

If you are in the midst of a separation, and haven’t read enough about COVID already, then you might be interested to know how the Federal Circuit and Family Court could approach disputes about children being vaccinated against COVID-19.

Immunisation disputes are not new, but nonetheless they do not feature much in the case law.

We know from what cases there have been that immunisation disputes typically fall into three categories, being:

 

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

 

Regardless of the circumstances, immunisation disputes are all about a child’s best interests and are often a flash point for parental responsibility issues. How then does the Court approach a matter where both parents are steadfast in their belief that they are acting in the child’s best interests by either having them vaccinate or not?

A point to note is that if there are not existing parenting Orders then a parent may get their child vaccinated without first informing or having the consent of the other party. A parent would do so at their own peril because Courts may be critical of someone who disregards the responsibilities of joint parenting, and such conduct may impact any ultimate decisions about parental responsibility.

 

How has the Court approached the issue?

First thing to note is that there is no presumption either way. Courts haven’t taken judicial notice of the consensus of medical evidence and the broader public health objective to have the populations vaccinated (rightly or wrongly). This means that if a dispute is before the Court, then expert evidence is a must.

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

 

Will COVID-19 be any different?

How a Court may approach whether a child with underlying health conditions gets the COVID jab when there is limited research will be an interesting one to see. It may be that a Court takes the view that an abundance of caution is necessary and find that at this point in time that each and every child being vaccinated is not necessary. It would be a difficult case for either argument and parents would need to be able to call upon credible expert evidence.

Another interesting point to note is whether Court’s may be more activist and consider the public benefit of a child getting the COVID jab or even the social ramifications for the child 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 not-so-distance pre COVID past.

One final point to note is 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?

Contact Umbrella Family Law if you find yourself in a dispute about whether your child or children should receive the COVID jab.

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

 

Sebastian Tottle | Lawyer