Covid-19 Vac­ci­na­tions for chil­dren – What hap­pens if you and the oth­er par­ent can­not agree?

As NSW hits the 70% vac­ci­na­tion mark and we get clos­er to return­ing to the life we knew before the out­break of COVID-19, one par­tic­u­lar issue con­tin­ues to rear its head in par­ent­ing disputes.

As it present­ly stands, the Aus­tralian Gov­ern­ment has ​“strong­ly encour­aged” every­one aged 12 years and old­er to get vac­ci­nat­ed, but what hap­pens when par­ents can­not agree?

Gen­er­al­ly, immu­ni­sa­tion falls under the cat­e­go­ry of ​‘parental respon­si­bil­i­ty’ as it is a med­ical deci­sion. Where one par­ent has parental respon­si­bil­i­ty, they are the per­son that makes the long-term deci­sions in respect of the care, wel­fare and devel­op­ment of the child/​ren and this includes deci­sion mak­ing in rela­tion to vac­ci­na­tions. These deci­sions can be more dif­fi­cult where par­ents have shared parental respon­si­bil­i­ty as they are required to joint­ly make deci­sions about the child/​ren’s immunisation. 

The recent case of Maki­nen & Taube dealt with this exact issue, as the Moth­er and Father of two chil­dren aged 12 and 8 had oppos­ing views on the COVID-19 vac­cine. The par­ties had exist­ing Orders pro­vid­ing them with equal shared par­ent­ing respon­si­bil­i­ty. The par­ents in this case were unable to make a joint deci­sion as whilst the Father wished for the chil­dren to be vac­ci­nat­ed in accor­dance with the State and Fed­er­al Gov­ern­ment health rec­om­men­da­tions, the Moth­er was opposed to the chil­dren being immunised. 

The Moth­er sub­mit­ted that the chil­dren were at risk of adverse reac­tions to vac­cines and referred to lit­er­a­ture she had read regard­ing the issue of neg­a­tive vac­cine outcomes. 

The Father sub­mit­ted that it was in the chil­dren’s best inter­est to be vac­ci­nat­ed hav­ing regard to Aus­tralian Gov­ern­ment pub­li­ca­tions and rec­om­men­da­tions of the Aus­tralian Immu­ni­sa­tion Handbook. 

An Inde­pen­dent Chil­dren’s Lawyer (‘ICL’) was appoint­ment by the Court to act for the chil­dren. The ICL relied upon the Gov­ern­ment rec­om­men­da­tions and fur­ther sub­mit­ted that non-vac­ci­nat­ed chil­dren can be exclud­ed from ser­vices and trav­el oppor­tu­ni­ties due to the risk they pose to oth­er peo­ple. The ICL con­tend­ed that this exclu­sion could also have neg­a­tive con­se­quences for the children. 

The Court not­ed that ​“Orders that ensure a deci­sion is tak­en about giv­ing vac­cines based on cur­rent med­ical advice is essen­tial for the best inter­ests of the chil­dren” and fur­ther com­ment­ed that ​“qual­i­fied doc­tors owe pro­fes­sion­al duties of care that apply to giv­ing vac­cines as a form of treat­ment.”

The Court ulti­mate­ly deter­mined that the Father should have sole parental respon­si­bil­i­ty in rela­tion to the chil­dren’s immu­ni­sa­tion. The Orders made by the Court required the Father’s deci­sion-mak­ing in respect of vac­ci­na­tion to be ​“in accor­dance with the Nation­al Immu­ni­sa­tion Pro­gram or as rec­om­mend­ed by the children’s gen­er­al prac­ti­tion­er.”

This case once again high­lights that when mak­ing deci­sions, the Court’s para­mount con­sid­er­a­tion is the best inter­ests of the child. 

If you have any ques­tions about parental respon­si­bil­i­ty or are expe­ri­enc­ing dif­fi­cul­ties mak­ing joint deci­sions about immu­ni­sa­tion, please con­tact one of our expe­ri­enced Fam­i­ly Lawyers so that we can assist you.