COVID-19 vaccinations and family law
What happens when parents are unable to reach agreement about whether their child should receive the COVID-19 vaccination?
Recently the Australian Government has opened up access to the Pfizer vaccination to 12-year-olds and will soon open it up to children as young as 5 years old. Whether a child receives the COVID-19 vaccination, or any other vaccination for that matter is an issue to be determined by their parents. So, what happens when parents are separated, and they don’t agree about whether their child should be vaccinated?
Currently, the Federal Circuit and Family Court of Australia has not had to make a decision about whether a child should receive the COVID-19 vaccination when their parents can’t agree. The Family Court of Australia has, however, made decisions in the past about other vaccinations such as the Whooping Cough vaccination and other childhood immunisations on the government schedule. Any further decision the Court must make about the COVID-19 vaccination will definitely consider past case law precedents set in those earlier vaccination matters.
What does the law say?
The decision about whether a child may be vaccinated or not, falls under the parental responsibility that every parent has for making long term major decisions for their children. These long-term major decisions include, but are not limited to education; town of residence; religion and medical treatment. Whether a child should be vaccinated or not falls under medical treatment.
Unless a Court has said otherwise, all parents automatically retain parental responsibility for their child. At common law, this parental responsibility is “joint and several” which means that either parent can take their child for a vaccination even if the other parent does not agree. However, this is not advisable and the Family Law Court frowns upon decisions that are made by only one parent.
If separated parents cannot reach an agreement about whether their child should be vaccinated and reach a stalemate, then one of them should make an application to the Federal Circuit and Family Court of Australia who will make the decision for them based on what is considered to be in the child’s best interests.
Have you had the conversation yet?
If you haven’t yet discussed vaccinations for your children, it is advisable to do so. If you can’t come to an agreement you can speak to our team here at Parker Coles Curtis about mediation and strategies to assist you through the process of coming to an agreement.
What does the Court say?
In considering whether to make an order whether a child should or should not be vaccinated, the Family Law Courts will consider the individual facts and circumstances of each family’s particular situation, including the medical and health status of the child and other family members. The Court will apply what is knows as the “best interests principles” which are a set of considerations provided for by section 60CC of the Family Law Act 1975 (Cth) which the court must apply when making decisions about children. The best interests principles consider factors such as health, religion and cultural concerns and are considered in light of all the evidence placed before the court including any evidence given by experts, such as medical professionals and specialists.
There is no one straight and definite answer in this situation and the outcome will likely turn upon the individual needs of the child. The courts decisions will ultimately be guided by expert evidence presented by the parties, which is weighed up with what are the best interests of the individual child.
Every matter turns on its own facts. No two children have the same exact needs and every parent has the right to have their views listened to and considered.
While the case law generally points us in the direction whereby find that vaccinations are in the best interests of the children, the Federal Circuit and Family Court of Australia is yet to determine a case specifically on this point.
At Parker Coles Curtis we’re here to help you when you need us.
Our team are here to listen, advise you and get to know your situation. We know that all circumstances and all families are different. If you are struggling to come to an agreement regarding the COVID-19 vaccination for your children, contact our tea, today. We can help guide you through and help you through this dilemma to come to a resolution.