Child Vaccinations, Including COVID-19: Who Decides in a Parental Dispute?

Disputes between parents on matters relating to their children’s welfare can take many forms. One area for dispute concerns whether a child should receive routine vaccinations. It may be anticipated that in the future, this may also include parents who are unable to agree whether or not their children should receive a COVID-19 vaccination.

Judicial comments from recent overseas cases may indicate the direction of travel for parental disputes over COVID-19 immunisation in Australia. Meanwhile, the two Australian cases outlined illustrate the Australian courts' current position.

Judicial comment on COVID-19 vaccinations in parenting disputes

The subject of a potential COVID-19 vaccination has drawn very recent comments in parenting disputes in other common law jurisdictions:

Tarkowski v Lemieux (2020) ONCJ 280

This Canadian case concerned whether the mother or father should provide daily child care. The father submitted that the mother had been negligent in how she had handled their child’s health issues, particularly concerning the child’s schedule of vaccinations. The Court granted day to day care to the mother but provided the father with the power to make unilateral decisions regarding the child’s vaccines. It was felt that the mother could not be trusted to make informed decisions about vaccinations and what was best for the child in that respect.

Although no such vaccine existed at the time (June 2020), the Court took the unusual approach of pre-empting a vaccine becoming available. In such an event, it would almost certainly lead to a dispute between the parties as to whether or not the child should receive it. The Court granted the father permission to unilaterally decide whether the child should receive the COVID-19 vaccine, along with existing conventional scheduled vaccines, if and when one became available.

M v H (Private Law Vaccination) (2020) EWFC 93

In December 2020, the English family court considered the approach when considering parents' objections to vaccinations, including COVID-19. The judge granted a father’s application for an order requiring the parties’ children to be given routine childhood vaccinations against the mother’s wishes. The judge further commented that, provided a COVID-19 vaccine is approved for use in children, and there is no ‘well-evidenced contraindication specific to that subject child’, the Court is likely to consider such a vaccination to be in a child’s best interests.

What is the Australian Family Court approach to parental disputes over vaccinations?

These overseas decisions may leave parents in Australia wondering what the approach can be expected in the family courts at home. There have been several Australian cases on the issue of vaccinations where parents have opposing beliefs as to whether their child should be vaccinated or not. Two fairly recent examples are as follows:

Kingsford & Kingsford (2012) FamCA 889

This case involved separated parents and their 8-year-old child. The dispute concerned the mother’s preference for homoeopathy, whereas the father favoured medical immunisation. The child lived with the mother but spent alternate weekends with the father and his new wife.

In 2010, the child had been taken to be medically immunised without the mother’s permission. The mother applied to the Court to prevent a repeat. Supporting the mother were the views of a homoeopathic practitioner, who was not medically qualified. Providing evidence for the father was a doctor who was a Fellow of the Australian College of Physicians.

The Court found that the ‘efficacy of homoeopathic vaccines in preventing infectious diseases [had] not been adequately scientifically demonstrated’. While the risk of taking them might be low, there were no demonstrable benefits. On the other hand, the small risk from traditional vaccination outweighed the known benefits. The Court agreed that the child could be conventionally immunised.

Duke-Randall & Randall (2014) FamCA 126

This case concerned two children aged 7 and 8 years of age, who had not been vaccinated. The mother was a confirmed ‘anti-vaxxer’. While in a relationship, the husband had gone along with the mother’s beliefs ‘for the sake of peace in the household’. In Court, the divorced father presented evidence that the children’s lives were being restricted by not having had the recommended vaccinations, with missed outings, holidays and other activities such as their gymnastic classes. The mother failed to provide any evidence that the children would be adversely affected by being vaccinated. The Court decided the children should have the recommended vaccinations.

What does this mean for the COVID-19 vaccination in future?

The illustrated Australian cases provide some guidance to parents who find themselves facing Court proceedings because they disagree over immunisation.

In deciding, the Court will consider the specific circumstances of the child involved. The parent’s beliefs will be considered, however, the Court is more likely to be swayed by medical and scientific opinion recommendations sympathetic to the child’s best interests. If there are competing expert testimonies, the Court will have to determine which testimony carries the greater weight.

Although the decisions above consistently went in favour of vaccination, this does not mean the Court is restricted. The Court would consider any allergies, the child's overall health, or any other specific concerns relevant to protecting the child's best interests. Evidence would be required from experts providing credible evidence against vaccination in such circumstances.

Concerning COVID-19 vaccinations, Australian Courts would probably be unlikely to stray far from the positions outlined in the overseas cases mentioned. If approved for use in children, a Court is likely to consider the vaccination to be in the child’s best interests, unless there is credible medical evidence to suggest otherwise when considering a specific child's interests.

Contact our Family Law Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experienced practitioners in all aspects of parenting matters and family law.  If you are in dispute over the vaccination of your children we can help and advise you on this difficult issue. Please contact us on 02 9281 5088 or fill in the online contact form.