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The importance of credibility in COVID vaccination disputes

By March 24, 2022May 10th, 2022No Comments

In a landmark COVID vaccination dispute in Canada, a judge is thought to be “the first judge in Canada to deny a parent’s application to vaccinate young children”. The judge is being praised for not allowing widespread societal “anti-vaxxer” sentiment to influence his decision, and instead looking closely at the scientific evidence preferred by both sides.

In the matter, a father wanted his children to be COVID vaccinated while the mother didn’t. The children involved were aged 10, 12, 14 and they strongly did not wish to be vaccinated. Although children’s views are not determinative in family law matters, they can’t be ignored (given the UN rights of a child). In this case, they were given considerable weight.

What is being seen as unusual in this matter is the fact that the judge openly criticised “the intolerance, vilification and dismissive character assassination in family court” when parties attempted to discredit “anti-vaxxer” ex-partners. 

He said the “anti-vaxxer” mother’s evidence “focused entirely on medical and scientific evidence while the father focused on labeling and discrediting his children’s mother in a dismissive attempt to argue that her views were not worthy of consideration”.

How credible is information from the internet?

In assessing the parties’ evidence, the Canadian judge noted that “information obtained from the Internet can be admissible if it is accompanied by indicia of reliability, including whether it comes from an official website from a well-known organization, whether the information is capable of being verified and whether the source is disclosed so that the objectivity of the person or organization can be assessed”.

In most vaccination disputes, “the Internet materials presented by the objecting parent have been grossly deficient and at times, dubious.”

However in this case, the mother had obtained and now presented evidence including: “an article by Dr. Robert Malone, the inventor of the mRNA vaccine; a Pfizer fact sheet; a peer-reviewed article entitled “Immunization with SARS Coronavirus Vaccines Lead to Pulmonary Immunopathology on Challenge with the SARS virus”; and an article from the Centers for Disease Control and Prevention (CDC) entitled “Clinical Considerations: Myocarditis and Pericarditis After Receipt of mRNA COVID-19 Vaccines Among Adolescents and Young Adults.”

Key takeaway

What can we learn from this Canadian case? Well, number one is that the matter highlights the importance of having strong evidence, no matter what the issues are in your family law matter.  As we have previously mentioned, much depends on the credibility and quality of expert witnesses in such cases.

The takeaway is that many parties arrive at court with “evidence” that is of very low quality and is easy for courts to dismiss. For example, internet search results that are lacking a credible source or a source that could be regarded as being on par with the sources that the other side is bringing in as evidence. Essentially, sources produced to counter governmental health directives need to be as credible as the evidence-based ones the public health directives rely on.

As it was noted in the Canadian case: “The lack of an equally credible counter-point to government recommendations may have well been determinative in …earlier cases.”

COVID vaccination disputes in Australia

Here in Australia, in the case of vaccination disputes specifically, our courts typically defer to Government public health directives in working out the best interests of a child.  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 that may be sufficient to satisfy the court it would not be in the child’s best interests to be vaccinated.

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. 

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.

If you need assistance with a family law matter, such as one involving a vaccination dispute, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

Source: The Lawyers Daily

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