As the Coronavirus pandemic demonstrated, vaccinations can be a divisive issue, particularly when a public health directive contradicts strongly held personal beliefs. When parents share parental responsibility for a child, they should both agree before their child receives any medical treatment, including vaccinations. When parents cannot agree on medical treatment for their child, then the matter may need to be decided in a family court hearing, where the court decides based on the best interests of the child. This page deals with parental disputes over vaccinations.
Resolving parental disputes over vaccinations
Childhood vaccinations greatly reduce the incidence of infectious diseases such as polio, whooping cough, measles and, most recently, coronavirus. However, like most medical treatments, vaccinations do carry a degree of risk. When determining whether a child should be vaccinated, parents must weigh this slight risk against the potentially fatal consequences if their child is exposed to the disease. Case law in Australia shows that parents tend to raise one of three main objections to the vaccination of their child: concern about adverse reactions (Arranzio & Moss [2015]), preference for homeopathic alternatives (Kingsford & Kingsford [2012]), and opposition on religious or spiritual grounds (Howell & Howell [2012]).
Under the Family Law Act 1975, parents should jointly make all major long-term decisions for their child, including medical decisions. As such, unless a parenting order is in place indicating that only one parent exercises parental responsibility, the decision to vaccinate a child requires consultation between the parents. If the parents cannot agree, they may need to turn to the Federal Circuit and Family Court of Australia for a decision about how to proceed.
When separated parents disagree over child vaccinations, the court generally finds that the child should be vaccinated according to national standards unless there is medical evidence to show that it is not in the child’s best interests. In these circumstances, the court often makes an order that the pro-vaccination parent should have sole parental responsibility for medical decisions in relation to the child.
Vaccination without consultation
On occasion, one parent may unilaterally decide to have their child vaccinated despite the objections of the other parent. This situation occurred in Kingsford & Kingsford [2012], where a father involved in a parenting dispute secretly had his child vaccinated before the court made any parenting orders. The court noted that, in the absence of parenting orders, this did not constitute a breach but did reflect very poorly on his attitudes towards parenthood. This was in direct contrast with the conduct of the mother, who openly followed homeopathic immunisation without subterfuge and in the belief it was in the child’s best interests. However, the court nonetheless ordered that the child should continue vaccination on schedule.
Court’s authority
A recent case before the High Court emphasised the court’s authority to make an order directing that a child should be vaccinated. In Covington & Covington [2021], the High Court confirmed the previous Full Court of the Family Court’s decision, setting a binding precedent on this matter. Partway through a Family Court parenting dispute, a mother attempted to withdraw her consent to parenting orders that provided for her child to receive future vaccinations as recommended by medical professionals. The order aligned with the father’s wishes, was supported by the Independent Children’s Lawyer, and was consistent with the advice of the child’s paediatrician.
When the case reached the High Court, the mother argued that she only consented to the parenting orders under duress. The mother further claimed that under the Commonwealth of Australia Constitution Act, the court does not have jurisdiction to make an order regarding mandatory vaccination. This argument relied on the constitutional prohibition against “civil conscription”, which would require a medical professional to perform services. In response, the court first pointed out that the validity of a parental order is not dependent on the consent of the parents. Moreover, the court noted its jurisdiction under the Family Law Act to make any appropriate parenting order or order about the welfare of children. Finally, the court remarked that the Family Law Rules specifically permit an application from a parent to carry out a medical procedure on a child despite the objective of the other parent. Therefore, the court found that it did have the power to decide on a medical issue such as the administration of vaccinations to children. Ultimately, the court dismissed the mother’s application on the basis that her argument had no merit.
In any proceeding involving a child, the court’s primary consideration is the best interests of the child. There is no doubt that the courts have the authority to order the vaccination of a child, even if it is against the parent’s wishes. However, the court has shown its unwillingness to exercise this authority arbitrarily. Contact the family law experts at Taylor Rose on 1800 491 469 for any assistance with your parenting orders.
