The Government’s recent changes to the rules on childhood vaccination have raised the issue of what should happen in a situation where parents can’t agree on whether or not to immunise their children.
Sometimes the issue of immunisation arises as one of a number of issues being decided in proceedings before the Family Court. It may fall under the category of long term care and welfare (now called parental responsibility) which parents share by law unless a court orders otherwise. When both parents have parental responsibility, they are meant to consult about medical issues. However, the GP doesn’t need to check both parents are in agreement on the issue.
Immunisation may become an issue if a parent wishes to travel somewhere where there are recommendations that travellers are immunised against particular diseases, yet the parent does not wish to immunise the travelling child. In such a case, the other parent may feel compelled to seek orders that the child is appropriately vaccinated.
Either parent may file an application in the Family Court seeking orders that a child be immunised. On the other hand, a parent might seek an injunction preventing the other parent from immunising a child. A detailed summary of the issue and an outline of relevant recent cases is available over at myfamilylaw.net.au. In essence, as with all matters involving children, the Family Court will consider what is in the best interests of the child when reaching a decision, though this is not the only consideration.
In considering what is in the child’s best interests, the court will weigh the risk of harm from immunisation against the risk of infection, as well as taking into account factors such as whether the child will be restricted in their activities as a direct result of not being immunised. This becomes even more relevant now that the Government has made access to childcare funding dependent on children being immunised.
Based on the case law, in line with current medical evidence, it is likely that Courts will consider it to be in a child’s best interests to be immunised and therefore will make orders that immunisation takes place. In order to obtain a different outcome, the courts would require the presentation of “clear scientific evidence” of an increased risk to the child from being immunised before making orders not to immunise.
Should you have any concerns regarding the issue of immunisation or non-immunisation of your child by the other parent, please contact Alliance Family Law on (02) 6223 2400 for advice specific to your situation.