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Covid, the Court and Child Vaccination

6 April 2021

The debate about the vaccination of children can be a passionate one at the best of times, but with the current Covid-19 vaccination roll-out happening, the topic is coming to the fore in Family Law.

What the Government says

Currently in Australia there is no approval for the administration of the COVID-19 vaccine to children under 16 years of age. According to statements issued by Therapeutic Goods Administration, children over the age of 16 years are able to receive the Pfizer vaccine however only children above 18 years of age are able to receive the AstraZeneca vaccine.

Separation issues

Separated parents of children over the age of 16 may have disagreements about whether their children should be immunised against COVID-19, and we suspect issues may increase if children under the age of 16 are approved to receive the vaccination.

Vaccinations is a question of medical treatment and we often get asked, who makes the final decision?

Decision making in the Family Law context

Parents have what is called “parental responsibility” for their children and it means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

It covers day-to-day decision making in relation to a child (such as bedtimes, meals, etc) and also “major long-term issues” such as education, religious and cultural upbringing, health, the child’s name and significant changes to the child’s living arrangements.

The Family Law Act says that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have “equal shared parental responsibility” (ESPR) for the child. The exception to this is if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence, or the court is satisfied that it would not be in the best interests of the child for the parents to have ESPR.

When parents have ESPR they must make joint decisions in relation to major long-term issues affecting the child (including health), but each parent can continue to make their own day-to-day decisions.

If there is reason for the court not to apply the presumption of ESPR, then the court may decide that one parent has “sole parental responsibility”, which means the parent with sole parental responsibility can make unilateral decisions about major long-term issues such as health, education and religion.

What does this mean for vaccinations?

Where parents do not have a court order in place, the presumption of ESPR applies and they need to make a joint decision about whether their children should be vaccinated or not as this is a major long-term issue.

The same applies where there is a court order for ESPR.

What happens when parents cannot agree about vaccinations?

We recommend that parents seek legal advice from a family law specialist as soon as possible if an agreement cannot be reached. We can assist you by advising you and guiding you through this process and hopefully to an agreement that avoids court.

If the parties still cannot agree, one party may make an application to the Court and leave it up to a Judge to make a decision.

An example to consider

While the court has not yet seen cases involving the COVID-19 vaccine in particular, the court has previously been faced with many cases involving general vaccinations.

In one case, the court was presented with parents who initially agreed not to vaccinate their 5-year-old child. The parents documented the agreement in a consent order. Four years later, the father filed a court application seeking to change the consent order to allow the child to be immunised. He said that he only agreed not to vaccinate the child years ago so that the mother would agree to the father spending time with the child.

The mother maintained her position that the child should not be vaccinated and provided evidence (supported by a Doctor) that there was a risk of the child having a reaction to the immunisation. To the contrary, the Father produced evidence which was also supported by a Doctor that it was in the child’s “best interests” to be protected from any diseases by receiving immunisations.

The court found that the risk of the child suffering a significant reaction to immunisation was extremely rare. In balancing the risk ratio and the paramount consideration of the child’s “best interests”, the court ordered that the child be immunised for Measles, Mumps, Rubella, Diphtheria, Tetanus, Pertussis and Varicella.

The court did not order that the child be immunised for Hepatitis B or Polio as there was little likelihood of the child contracting any of those diseases in Australia and therefore on a risk analysis they were unnecessary.

COVID-19 Court List and COVID-19 Vaccine

In a previous article we explained the introduction of the court’s COVID-19 List for urgent parenting matters which you can find here (https://www.michaellynchfamilylawyers.com.au/covid19-urgent-parenting-list/). In summary, the COVID-19 List was created so that disputes that arose directly or indirectly as a result of the Pandemic, including family violence matters, supervised contact issues, border restrictions or medical issues, could be heard by the court quickly.

On 12 March 2021, the Family Court of Australia issued a media release that stated the COVID-19 list had been expanded to cover a broader range of circumstances. Amongst the new matters that can be heard by the court within the COVID-19 List are disputes between separated parents as to whether to vaccinate children against COVID-19 (and sudden changes to parties’ financial positions after the government support measures recently changed).

The expansion of the COVID-19 List is a great step forward for Australia’s Family Law court system. It will ensure that issues that have arisen as a direct or indirect result of the pandemic will be assessed and dealt with quickly (potentially within 3 to 7 business days) by the courts.

Seek Legal Advice

If you have a Family Law issue that is being impacted by the COVID-19 pandemic and may need urgent intervention by the court, we recommend that you contact us immediately to obtain legal advice to navigate this developing process. Contact our office on (07) 3221 4300 for a fixed-fee initial consultation.

2021-04-13T14:00:39+10:00

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