The paediatric formulation of the Moderna COVID-19 vaccine (Spikevax) has been provisionally approved by the Therapeutic Goods Administration (TGA) for use in children aged 6 months to 5 years.
Now, ATAGI has recommended that children aged 6 months to 5 years who are severely immunocompromised, have a disability, or have complex and/or multiple health conditions that increase their risk of severe COVID-19, get vaccinated. Vaccines for these children will be available from 5 September 2022.
Every time new information surrounding COVID-19 vaccines arises, medical, legal and ethical questions continue to be asked.
In the family law field, the question we commonly are asked is what happens if separated parents disagree on whether or not to vaccinate their children once they are eligible?
In circumstances where parents may not be able to form an agreement, where one parent is eager to vaccinate the child, whereas the other may not want their child to have a particular vaccination or any at all – it can seem like an insurmountable impasse.
Separated parents may wonder whether they can individually, or through the Family Court, have their child vaccinated against COVID-19 without getting permission from the other parent.
What happens if parents are unable to agree on a child’s vaccination?
There are many stressors surrounding COVID- 19 and deciding whether or not to get your child vaccinated may be an additional stressor, especially when parents find themselves disagreeing on the matter.
There are a range of options that can be undertaken to try to form an agreement:
- If your situation allows, you should discuss your concerns with the other parent in a respectful manner, allowing both sides to put their perspective forward.
- Seek professional advice from a general practitioner or a specialist immunisation service.
- Attend mediation or Family Dispute Resolution (FDR) if you and the co-parent are struggling to communicate in a respectful manner, or are struggling to reach an agreement.
If you and your co-parent are struggling with these options, seeking assistance from the Family Court may be the best option. With COVID-19 vaccinations not yet fully available for all children, we are yet to see how the Family Court will determine whether a child should be vaccinated for COVID-19 when parents are in disagreement on the matter. However, we can examine how the Court usually handles disagreements on vaccination or other health related situations for children, starting with the presumption of parental responsibility for a child’s health.
The presumption of parental responsibility for a child’s health
Shared parental responsibility requires separated parents to discuss with each other and make an effort to form an agreement surrounding important issues affecting their children. The Court presumes that parents have equal shared parental responsibility, which means that both parents are required to jointly discuss and agree upon major decisions in relation to the child. Unless this presumption is rejected by the Courts, parents are taken to have equal responsibilities for the child. By default, it is in the child’s best interest for parents to share parental responsibility and thus, they should work to form an agreement together regarding the child’s medical care.
In most cases, decisions surrounding vaccinations and health related matters initially lie with the parents, as these matters concern the child’s health. However, where shared parental responsibility exists but medical decisions cannot be agreed on, the Court may allocate medical responsibility to just one parent if that would be in the best interests of the child.
Intervention of the Family Court when parents are unable to agree on a child’s vaccination
If you are unable to reach an agreement with the co-parent, attending Family Court may become a final resort. This option may become emotionally and financially difficult, so it is usually best avoided unless necessary.
There are various precedents which suggest that the Family Court can order that a child is to be vaccinated. Whilst the Courts hold this power, and can make this order against the wishes of a parent, it is not conducted in an arbitrary manner. These decisions are not taken lightly and without expert evidence. Ultimately, the Court will make decisions based on the child’s best interests. These ‘best interests’ may differ from case to case, and thus there is no single solution for all situations.