The world we live in is a very different place to what it was pre-COVID19.
As the various COVID19 vaccinations roll out in the community, it is likely we will see an increase in disputes between parents about whether or not they should vaccinate their children.
Currently in Australia, the Therapeutic Good Administration (TGA) do not approve either the Pfizer nor the AstraZeneca vaccine for young children. However, as medicine improves, it may be that a new vaccine is created and, perhaps, there may be a specific vaccine for children.
If such vaccine is created, it is likely to cause a dispute between parents, however the issue of vaccinating children is not a new topic before the Courts.
What happens if we simply can’t agree?
There is a presumption that both parents have equal shared parental responsibility (ESPR) in relation to the long-term decisions for a child. In short, both parents must jointly agree on decisions in relation to a child’s name, schooling, health, religion and the like.
If both parents cannot agree, then one parent will be required to make an Application to the Court to have a Judge determine the matter.
The Court is bound to consider section 60CA of the Act which states:-
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Court must be provided with evidence about whether the vaccination is, or is not, in the child’s best interests. For example, if the child suffers from a medical condition, it may be that the COVID19 vaccination could be harmful to their health and, in those circumstances, the parent opposing the vaccination would require medical evidence from the child’s treating doctor outlining the possible health implications such vaccination may pose for the child.
What Orders can the Court make to resolve the issue?
There are a variety of Orders a Judge may make when deciding whether the COVID19 vaccination is in a child’s best interests. The Court may make the following Orders:-
- One or both parents must do all things necessary to ensure the child is vaccinated against COVID19;
- The parents be restrained, by injunction, from vaccinating the child against COVID19;
- One parent be granted sole parental responsibility; or
- One parent be granted sole parental responsibility in relation to medical and health matters only.
If one parent is granted sole parental responsibility, it means they are at liberty to make decisions they consider best for the child, without requiring the other parent’s permission or approval. They do, however, have to keep the other parent informed of their decision and normally, they are required to attempt to reach an agreement with the other parent before making a decision.
Although this has not yet been an issue for the Courts as young children are unable to be vaccinated against COVID19, if the COVID19 strain continues to develop, a vaccination for children may be necessary to help stop the spread.
If you require assistance in relation to your Family Law matters, please contact the Family Law Team at Connolly Suthers.