What happens when parents disagree on their child’s vaccination? A family law perspective

By Dean Foley / 05 November 2021
5 min.
Worthwhile read for: parents, family law practitioners,

To vax, or not to vax, that is the question. 

The legal, medical, and ethical minefield surrounding the question of vaccinations is not going away any time soon. With reports from overseas on lowering the ages at which children should be receiving COVID-19 vaccinations, the topic is going to remain something of a vexed issue going forward.

It should come as no surprise that a question being posed by parents going through a separation is whether they can either individually, or by a court order, have their child immunised (whether for COVID-19 or other disease) without the consent of, or in defiance of, their former partner.

The presumption of parental responsibility for a child’s health

The starting point for this question is presumption of parental responsibility. Unless and until a court varies this, parents are taken to both have parental responsibility for their child. This means that each of them has all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

If a court is asked to make a parenting order, they start with the presumption of equal shared parental responsibility. Whilst this is a rebuttable presumption it is taken to apply in many, if not most, cases.  

Under the Family Law Act 1975, equal shared parental responsibility has a slightly different, or at least more comprehensive, definition than ‘parental responsibility’. Shared parental responsibility obliges parents to consult with each other and make a genuine effort to come to a joint decision in relation to any major long-term issue.  

Major long-term issues relate to the care, welfare and development of the child and which are of a long term nature. These include, but are not limited to:

  • the child’s education (both current and future); 
  • the child’s religious and cultural upbringing;
  • the child’s health; 
  • the child’s name;  and
  • changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Plainly enough, the vast majority of the time issues such as decisions about vaccinations and immunisations initially lie with the child’s parents as they fall within the child’s health.

What happens if parents are unable to agree on a child’s vaccination? 

Perhaps unsurprisingly there can be occasions where parents are unable to come to a joint decision, and one of those occasions can be around vaccinations. It’s not difficult to imagine a scenario where one parent is fully supportive of their child receiving all recommended vaccinations, whilst the other parent is against vaccinations of any kind, or is opposed to a specific vaccination (such as COVID-19 vaccinations).

The 2011 case of Mains & Redden leaves no doubt that the Family Court have the power to make an order that a child be vaccinated. That view was affirmed in the recent 2021 Full Court of the Family Court case of Covington & Convington, with that case also affirming:

That jurisdiction is not dependent on whether or not the parties consent. Section 65 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings for a parenting order a court may make such parenting order as it thinks proper (alternatively or additionally see s 67ZC of that Act), and that order can be validly made even if there is no consent.

Whilst there is no doubt that the court have the power to order that a child be vaccinated, even if doing so is against the wishes of a parent, it is a not a power which is exercised in an arbitrary or capricious manner.

When will the court order a child to be vaccinated? 

An example of the seriousness the court take this power can be seen in the abovementioned Mains case. At the core of this dispute were the concerns held by the mother of the possible vaccination side-effects her child may experience if they received the vaccinations the child’s father intended. The mother’s concerns were due, at least in part, to the fact that she had suffered side-effects as a consequence of vaccinations when she was a child.

As the case proceeded through the court, each parent obtained evidence from a variety of medical specialists, such as paediatricians and those with extensive experience in the field of immunology. It’s of some interest that there were various points upon which even the experts could not agree.  

The mother was not satisfied with the original decision, which ordered the child be vaccinated. On appeal each party provided further medical evidence to the court which included, on behalf of the mother, evidence from a doctor who suggested that prior to the child receiving a full suite of vaccinations a small number of tests could be carried out to determine the likelihood of any serious adverse reactions (if any) to immunisation. On the basis of that evidence (which had not been available to the original decision maker) the appeal court agreed that the matter should be re-heard by a decision maker who would have the benefit of the best possible evidence, including the evidence produced during the appeal, when making their ultimate decision.

It should be noted that the decision in Mains is quite different to the decision in Covington. Although both cases related to the issue of vaccinations and immunisations, their respective facts and the conduct of the parties (or some of them) were markedly different.

Ultimately, the court will make decisions based on the best interests of the child. What those ‘best interests’ are can sometimes be a point on which reasonable minds may differ, and there is not necessarily a single answer which can be applied to all situations.

If your child’s vaccination is a point of contention in your life, or you anticipate it becoming one, contact us for assistance.

Dean Foley
Special Counsel
Dean is a Special Counsel in our Family and Relationship Law practice.

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