Vaccinating Children
The introduction of the Covid-19 vaccination for children continues to be a divisive and contentious topic amongst parents and caregivers. As such, it is not surprising that some parents may have opposing opinions when it comes to whether their children should receive the Covid-19 vaccination.
Vaccinating a child comes down to a decision of parental responsibility as outlined in Section 61B of the Family Law Act 1975 (Cth) (The Act). Parental responsibility refers to making decisions about long-term issues that affect children. This includes making decisions about a child’s health. As per Section 61DA of the Act, the Court must apply the presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility. This means that parents must make a genuine effort to come to a joint decision about their child’s health. However, the presumption can be rebutted in certain circumstances.
Parents who have been unable to reach agreement about whether to vaccinate their children against Covid-19 and other diseases have applied to the Federal Circuit and Family Court of Australia (FCFCOA) to determine the issue. Recent decisions of the Court indicate that when parents are unable to agree about their child’s vaccination status, the Court will make a decision based on what is in the best interests of the child as per Section 60CC of the Act.
This includes considering factors such as:
1. Medical advice from reputable and accurate sources.
2. Adverse reactions from vaccinations are rare and most Australians are vaccinated against previously widespread infectious diseases.
3. Greater weight must be given to the protection of a child from physical or psychological harm.
4. Whether it is preferable to make the order least likely to lead to further proceedings.
In the case of Makinen and Taube (2021) FCCA 1878, the father sought sole parental responsibility in respect of the children’s immunisations and vaccinations. He was supportive of the children receiving vaccinations as recommended by the children’s treating general practitioner. In contrast to the father’s position, the mother opposed the children getting vaccinated on the basis that the adverse effects from vaccinations outweighed the risk of the children contracting vaccine-targeted diseases.
It was clear that both parents had the best interests of their children at the forefront of their thoughts. However, the Judge made an order providing the father with sole parental responsibility in relation to the children’s immunisations and vaccinations as he was likely to accept expert medical advice or commonly accepted medical advice, whereas the mother did not want the children to be vaccinated from any disease.
It was the Judge’s view that it was in the children’s best interests to be protected from vaccine-targeted diseases and preventative action should be taken. The Judge highlighted that Section 60CC(2A) of the Act requires children to be protected from physical or psychological harm.
Ultimately, the Court has the power to order vaccinations regardless of parental consent. However, the Court will only make an order if it is in a child’s best interest to do so.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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