How the courts deal with vaccinations generally
When parents separate, issues regarding the ongoing care and welfare of the children will often arise and with the release of the new COVID-19 vaccines, the immunisation of children is slowly becoming a big issue.
As vaccination is considered a long-term decision, it falls under the categories of decisions required to be made in line with parental responsibility.
Other long-terms issues include education, health, religion, the child’s name, living arrangements that affect the time spent with the other parent.
If parents have shared parental responsibility, which is most often the case, they each must agree on long-term decisions, this includes whether a child is to receive the COVID-19 vaccination.
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.
Can I vaccinate my child without the other parent’s consent?
The short answer to this is no.
Even if the Court generally tends to favour vaccination, the facts in each case vary according to the particular needs of the child and whether it is in the child’s best interests to be vaccinated or not to be vaccinated.
The Court also does not tend to look favourably on parents who make unilateral decisions to vaccinate their children without the knowledge or consent of the other parent. Making such a decision, without the input of the other parent 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.
Family Court decisions in England about vaccination
At the time of writing there has yet to be a case in Australia regarding the COVID-19 vaccine.
However, in England the case of M v H v P and T [2020] EWFC 93, a father sought to have his two children 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 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, however, the Court did order 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.
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.
