Following the implementation of various government mandates in 2021 which required certain persons to be vaccinated to enter facilities and government advice that children of particular ages can be vaccinated for the COVID-19 virus, the Court has seen an increase in the number of matters brought before it for determination by as to whether a child should be vaccinated.
History
Whilst the issue of COVID-19 vaccinations is a relatively recent issue, the Court has considered the issue of vaccinating children on many occasions prior to 2019. For some time, in limited circumstances, parents have sought the assistance of the Court to determine whether a child should in fact be vaccinated.
The law
The rights of a parent to elect whether a child should be vaccinated stem from the concept of parental responsibility.
Parental responsibility is the powers, responsibilities and authority exercised by parents in relation to making decisions regarding major long-term issues for their children. Under the Family Law Act 1975 (Cth), a Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for a child, which requires the parents to make decisions jointly regarding major long-term issues for the child.
The presumption that it is in the best interests of a child for their parents to have equal shared parental responsibility does not apply in circumstances involving abuse of a child or family violence. The presumption can also be rebutted if any other evidence exists that satisfies the Court that it is not in the best interests of a child for their parents to have equal shared parental responsibility.
The Court can also make orders for sole parental responsibility for certain types of decisions to be made, such as medical decisions.
So, how has the Court dealt with this issue previously?
To best understand how the Court may consider a request for a child to be vaccinated, we need to consider the various cases on the issue.
- In Mains & Redden, the Court considered whether a six-year-old child should be vaccinated in circumstances where the mother opposed vaccinations. The father advocated for the child to be vaccinated. The mother and child had previously had reactions to vaccinations however the father produced a significant volume of expert evidence which supported the child being vaccinated. Based upon this evidence, the Court found that there was an extremely low risk of the child having an adverse reaction to any vaccinations and ordered that the child be vaccinated.
- In Howell & Howell, the father held strong religious beliefs and opposed vaccinations. The mother expressed concerns regarding the father’s religious beliefs. The Court ordered that the mother and father have equal shared parental responsibility for the child, save that the mother has sole parental responsibility to make all decisions about the child’s health. The parties had attended to signing and lodging the necessary conscientious objection forms at the child’s birth regarding the child not being immunised. Whilst this was adduced as evidence, the Court found in the circumstances it was appropriate that the mother be permitted to make all health-related decisions with respect to the child.
- In Kingsford & Kingsford, an eight-year-old child had previously received homeopathic treatments rather than being vaccinated. The father, who was not the primary career of child, took the child for traditional vaccinations without the mother’s knowledge or consent. The mother sought orders that the child is homoeopathically immunised and that the father is restrained by injunction from otherwise immunising the child without the express written permission of the mother. Significant expert evidence was adduced which supported the view that the benefits of vaccination outweighed any risk. The Court commented on the father’s behaviour in having the children immunised in secret, namely that such conduct reflected poorly on his attitude to the responsibilities of parenthood. Orders were ultimately made for vaccinations to occur.
- In Arranzio & Moss, the mother sought an injunction preventing the father from having the child immunised. Under cross-examination, the mother indicated that, irrespective of any scientific evidence put before her, she would not consent to the child being vaccinated. On that basis, she would not provide the father with written authorisation for this to occur and the correct order that she should have sought is an order prohibiting the father from having the child immunised. The mother had a “conscientious objection to vaccination on the basis of her research and her comparison of risk.” A recommendation within the family report was that the mother has sole parental responsibility for all major decisions except vaccination, with the father to have sole parental responsibility in relation to the child’s vaccinations. Ultimately, the Court made an order that the father has sole parental responsibility.
- In Rilak & Tsocas, the mother opposed the child being vaccinated. The Court considered the paramount consideration (being the best interests of the child) but also considered the public benefit of immunisation generally, including herd immunity. Whilst the best interests were the paramount consideration, those factors were not the sole consideration for the Court.
- In Locatelli & Smith, the parties had differing views with respect to immunisation of a ten-year-old child. This resulted in a conflict at a vaccination clinic in front of the child where the child had been taken to be vaccinated. The father elected not to press the issue ultimately, although he had previously sought sole parental responsibility. The Court found that, in the absence of any admissible expert evidence, they were unable to make any findings of whether it was in the child’s best interest to be vaccinated or more general findings as to the child’s health.
What can we learn from these cases?
To best support any application regarding vaccinations, you should ensure the following:
- You have independent medical and scientific evidence to support your position;
- That evidence is before the Court and is sufficient for the Court to determine what it is in the child’s best interests;
- Your orders sought to reflect the position taken by you in your material;
- You should not make unilateral decisions regarding vaccinating the child until a decision is made by the Court.
The Court has previously found evidence by the following types of experts to be helpful in determining the best interests of the children:
- Evidence from a doctor with a Bachelor of Medicine;
- Evidence from a physician in immunology and allergy.
The Court has previously found the evidence of a homeopathic practitioner with an Honours Degree in Economics and a career in financial services not particularly persuasive.
Has the Court’s position changed with the introduction of the COVID-19 vaccine?
In Blesing & Blesing, the Court considered whether it was in the child’s best interests to be vaccinated following the production of the COVID-19 vaccination.
The father opposed the children from being vaccinated. The mother’s position remained uncertain, she was not clear about the children being vaccinated. The father sought an order restraining either party from vaccinating the children against COVID-19.
The Court ultimately found that there was insubstantial evidence to be able to make a determination as to its position with respect to the vaccination. The Court found that the speculative views put forward by the parties were not anchored in fact and potentially productive of harm.
The Court pointed to an “absence of evidence as to the efficacy of vaccines and the effect of COVID-19 being led in evidence.”
The Court also voiced the difficulties in weighing cultural and religious issues, although indicated that such issues are certainly not off-limits in assessing benefits and risks to children.
An order was ultimately made by consent on an interim basis, as follows:
“That until further Order, neither party will take any steps or cause any third party to take steps to vaccinate, or attempt to vaccinate, the children against COVID-19.”
Key points to takeaway
The cases in this area of law are relatively clear – where a party is able to adduce independent and persuasive expert evidence in support of the child being vaccinated, the vast majority of cases supported an order being made for that parent to have sole parental responsibility with respect to medical decisions.
The Court will look to the specific circumstances of the child who is the subject of the proceedings and consider a parent’s beliefs or views, whilst ultimately placing significant weight on expert medical and scientific recommendations as to what is in the child’s best interest.
If there are competing expert and scientific opinions, the Court will need to determine which expert’s opinion should be followed.
Where a party is seeking an injunction with respect to a child not being vaccinated, it is important that any expert evidence addresses the remoteness of any risk to the child.
The Court may also consider the interests of the public by way of herd immunity in determining whether the child should be immunized.
What is the appropriate application to be made to the Court regarding the COVID-19 vaccination?
In circumstances where you seek an urgent determination as to whether a child should be vaccinated, consider the following:
- Is an interim injunction required or is this a matter for a final determination?
- Does expert evidence support the orders sought?
- Is the parent’s position very clear in their application?
- Does the Court have sufficient information to make a determination?
- Is it necessary to seek sole parental responsibility on health issues based on the conduct of the other party in the proceeding or their conduct to date with respect to making health decisions? Would the evidence before the Court support such a decision?
It is recommended that you consider whether the matter may be appropriate for inclusion on the National COVID-19 List.
The National COVID-19 List
The National COVID-19 list applies to urgent or priority family law applications filed in the Federal Circuit and Family Court of Australia, which are filed as a direct result of, or insignificant connection to Coronavirus.
In order to be considered for the National COVID-19 List, the applicant must satisfy the following criteria:
- The application has been filed as a direct result of, or insignificant connection to, the COVID-19 pandemic;
- The matter is urgent or of a priority nature;
- The application is accompanied by an affidavit;
- Reasonable attempts have been made to resolve the issues where safe to do so but are unsuccessful; and
- The matter is capable of being dealt with by electronic means.
If assessed as urgent by the Registrar, your application on that list will have a first return date within 3 business days of being considered by the Registrar.
You should consider the Family Law Practice Direction – National COVID-19 List practice direction.
Do you need more information?
Feel free to contact our office for information tailored to your particular circumstances.