Vaccination of Children

Who decides about the vaccination of children when parents are separated?

As the COVID-19 vaccine rollout has progressed such that children as young as 5 years old have now become eligible to be vaccinated, there has been a renewed focus on the question put to the Family Law Courts numerous times before:

What happens when separated parents do not agree about whether their child is  vaccinated?

According to the Family Law Act 1975, there is a presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility in relation to them, which means that parents are expected to consult one another and make a genuine effort to decide together on major long-term issues for the child, including issues relating to the child’s health.

If the parties cannot agree on these issues, the matter may need to be determined in the Federal Circuit and Family Court of Australia, especially if Parenting Orders have been made previously which provide for the parents to have equal shared parental responsibility.

The answer to the above question is determined the same way regardless of which vaccine is being disputed, whether it be the COVID-19 vaccine or any (or all) routine childhood immunisations.

The non-vaccinating parent will need to demonstrate why, in the child’s particular circumstances, it is not in the child’s best interests to be vaccinated.  Such circumstances may include allergies, autoimmune conditions or other pre-existing conditions or predispositions that would place the child at greater risk than the general population of experiencing serious adverse effects.

In some cases, such as in the recent decision of Makinen and Taube, the Court has given sole parental responsibility on the discrete issue of vaccination to the vaccinating parent to avoid further dispute between the parents. In the matter of Covington and Covington, Orders were even made for the child, who usually lived primarily with the mother, to live primarily with the father and spend time with the mother until the child had received all of her vaccinations pursuant to the Victorian vaccination schedule.

However, it was noted in the matter of Makinen and Taube that it was not appropriate for the Court to make Orders specifying which vaccinations a child should receive, as the Court is not equipped to give medical advice and cannot make such decisions in the absence of expert evidence. The vaccinating parent was instead referred to seek and follow medical advice and recommendations.

General information is available on the Department of Health website https://www.health.gov.au/resources. If in doubt parents should consult a GP or immunisation specialist prior to vaccinating their child to discuss the child’s medical history and ensure that the vaccine is safe and appropriate in the circumstances.

Please contact our Family Law Team on 9870 9870 if you require advice on this topic or any other Family or children related matter.