The availability of the COVID-19 vaccine to children 12 years old and above will inevitably lead to a dispute before the Family Court. Australia has one of the highest vaccination rates in the world, but that is not to say that everyone agrees about vaccinations, particularly the COVID-19 vaccine.
So, what happens when the parents of a child do not agree on whether or not to vaccinate a child? Ultimately, the question of whether or not to vaccinate a child comes down to ‘parental responsibility.’ Vaccination status is considered a long term issue for a child along with issues such as education, religion and living arrangements.
Parenting Orders stipulate the status of parental responsibility, generally it is the first matter dealt with in the Orders. The Court may order that one party have sole parental responsibility and is able to make decisions alone or that the parties equally share parental responsibility and must consult each other in order to make decisions together. Shared parental responsibility is presumed and the more common of the two options. Quite significant evidence is required to convince the Court that sole parental responsibility would be in the child’s best interests, and in this case the presumption would be rebutted.
If parties have shared parental responsibility and cannot agree on whether or not to vaccinate their child, they may apply to the Court to make the decision for them. In coming to a decision, the Court will have regard to the best interests of the child.
Whilst the Court has made it clear that the vaccination of children is encouraged, it continues to be the prerogative of parents to determine whether or not their children are vaccinated. Prior cases which discuss vaccination as the main issue tend to support this. For example, in cases where there is sole parental responsibility and that parent has decided against vaccination, the Court has not ordered vaccination. However, in cases where there is shared parental responsibility, the Court has sided with the parent who is for vaccination ordering vaccinations aligned with the National Immunisation Program (NIP). Despite these typical outcomes, the Court will still consider the best interests of the child on an individual case basis. Some examples of what is considered in determining the child’s best interests are the child’s views and aspirations, the child’s identity (age, gender, culture), the safety of the child and the child’s family environment.
Further considerations relating specifically to the decision to vaccinate are the ‘no jab, no pay’ and ‘no jab, no play’ laws which restrict the availability of family assistance payments and child care services for children who have not been vaccination according the NIP. These factors may be considered relevant to the Court when deciding what is in the best interests of the child, particularly if this restricts either party’s ability to care for the child.
We don’t have Orders in place, what now?
In theory, if there are no orders in place then there is no obligation for parents to consult each other about major long-term issues before making decisions. However, this does not mean that you can vaccinate a child without the other parent’s consent. Despite the appearance of the Court tending to err on the side of support for vaccinations, the Court has shown disapproval of a parent who chooses to vaccinate a child without the other parent’s approval or consent. Such a decision reflects poorly on that parent’s attitude to the responsibility of parenthood and their parenting capacity. If the other parent initiates proceedings because of your decision, this reflection may result in unfavourable Orders being made.
Will the Court consider what my child wants?
The Court will consider the age of the child and whether or not they are capable of making a medical decision.
Only time will tell whether the COVID-19 vaccine will be mandatory and/or listed under the NIP schedule. Until such a time, we expect to see this matter come before the Family Court and future direction to be clarified.