COVID vaccination and family law – what to know: Vaccination generally is one of those issues on which parents can have very polarised views, and with the world’s hopes currently pinned on a mass rollout of the COVID vaccines, there is potential for court disputes over COVID vaccination of children. Let’s take a brief look at the issues around vaccination and family law.
Our family courts created a “COVID 19 List” last year, designed to fast track applications by parents impacted by the pandemic. The COVID 19 List covers applications relating to issues specific to the pandemic, such as suspension of parenting agreements, family violence, border and quarantine restrictions affecting parenting agreements, medical issues such as a parent contracting COVID, financial stress issues, failures to resume suspended parenting agreements after particular restrictions have eased, issues relating to parents who are frontline workers, and potentially disputes over children being vaccinated against COVID.
With the expectation that some co-parents will disagree over children’s COVID vaccinations, experts say that although it will be informative to look at how the courts have handled vaccination cases generally, there is also the chance that the COVID vaccine will be treated quite differently in family law.
Vaccination cases generally
It is fairly rare for vaccination disputes to end up in court. In considering what is in the child’s best interests, courts will weigh the risk of harm from vaccination 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 vaccinated. This has become even more relevant since the Government’s “no jab no play” decision in 2018 which restricts access to childcare and childcare funding unless a child is vaccinated in accordance with public health guidelines. (There may be exceptions for children on a recognised catchup schedule or if they can’t be vaccinated for medical reasons. However, a parental “conscientious objector” exception that previously existed was repealed.)
An assessed risk to children isn’t necessarily due to the vaccination itself. It can also be due to the limited social opportunities if a child is not vaccinated and can’t attend childcare, gyms and other places restricting non-vaccinated children, or if they would be limited in travel or to have contact with extended family if they are considered vulnerable.
Based on the case law, in line with current medical and scientific evidence, it is usually expected that courts will consider it to be in a child’s best interests to be vaccinated and therefore will make orders that vaccination 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 vaccinated before making orders not to vaccinate. Or, for example, if evidence is presented that the child is allergic or has experienced an adverse reaction to a vaccine previously.
But even where judges accept that vaccination carries a low level of risk, they have typically found that the risk of harm of a traditional vaccine program is not as great as the risk of infection with serious disease in non-vaccinated children.
Will COVID vaccination be treated differently?
A COVID-19 vaccine could be treated differently to other vaccines in the courts, simply because of the short time taken to get the vaccine to market and the limited time spent in trials. Further, as yet, the long term effects of COVID vaccines are unknown. There could also be scientific disagreement over whether there is truly a benefit to giving it to children, given they are apparently less susceptible to COVID. However, there is also the threat to the wider society if an asymptomatic, unvaccinated child unknowingly transmits the virus.
The courts have shown they will defer to public health guidelines while considering the specific facts of a particular case. They will, as usual, weigh up the benefits of vaccinating a child against the risks, but in this case, such risks remain something of an unknown variable. However, if a COVID vaccine is approved for use in children, it is probable that the courts will also endorse the vaccine as in the child’s best interests and outweighing risk.
Parents may be able to produce medical evidence and other expert witness evidence relating to issues of comorbidity or other health risks in their children. A lot can depend on the credibility and quality of expert witnesses in such cases.
If medical opinion and peer-reviewed research evidence begins to show that there are significant concerns with the COVID vaccines, or if there are evidenced contraindications for children at more risk due to comorbidities, then courts may well decide to rule against COVID vaccination in a specific case—provided the parents lead the court to such evidence. Other factors that may be influential when it comes to COVID vaccination and family law could include the immune health of the child’s family members or carers, especially if they regularly see their grandparents.
When parents may disagree on vaccination
When parents share equal parental responsibility for their children, this includes the responsibility to make decisions about the children’s medical care. Although under the Family Law Act 1975, parents are required to make a genuine attempt to reach a joint decision on such issues, either of them can in fact act alone and without the other to meet their responsibility. With this potential freedom to act alone, some parents want to pre-empt or prevent their co-parent from going ahead with vaccinations by obtaining court orders.
Either parent can file an application in the family court seeking orders that a child be vaccinated or alternatively, seeking an injunction preventing the other parent from having the child vaccinated. The court may then make orders that the parents do all things necessary to facilitate a child’s vaccination, or alternatively issue an injunction restricting the child’s vaccination.
Parents can also apply to the court for an order allocating them sole parental responsibility rather than equal shared parental responsibility. This means they will be able to then make unilateral decisions regarding vaccination (or other major) decisions about the children.
Do parental views even matter?
Sometimes parents may believe the state should not make such decisions about their children or they might feel court orders regarding vaccination are a breach of the child’s right to a private family life. They may have doubts over whether public health authority determinations are lagging behind science, or that side effects of vaccines might be more detrimental than the disease being vaccinated against.
However, while parental views about vaccination are taken into account by the courts, the ultimate judicial outcome does not depend on how strongly parents hold their views. In all cases, the courts have the authority to override the views of the parents.
Whatever the objections of parents, the courts will make orders that they regard as in the best interests of the child. In one vaccination parenting case, even though the judge acknowledged the mother’s view that enforced vaccinations would infringe the child’s human rights, the judge found that the vaccination was “sufficiently important” to justify the limitation of a fundamental human right.
As always, a child’s best interests is the paramount consideration in our family law system. Courts will be guided by public health authority determinations on the COVID vaccine, as they are with other vaccines, and unless clear scientific evidence becomes available (and is presented to the court) that there would be a greater risk than benefit to a child being vaccinated against COVID, court cases will likely continue to result in orders for vaccination.
It’s expected that our family courts will see COVID vaccination cases come through over the coming months, but the view is that once several decisions have been handed down, there will then be some case law on the issue for reference making potential outcomes clearer.
Given the rapidly evolving nature of this aspect of family law, Alliance Family Law will keep a close eye on updates and court cases and will endeavour to let our readers here know of any important developments.
If you need family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400. Ask us about our free first conference!
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.