There has been an influx of enquiry from concerned parents, about the possibility of their children being vaccinated against COVID-19. These parents fall on either side of the issue – some are eager to have their children immunised as soon as possible, while some are concerned about potential adverse effects and want to make sure their children aren’t put at risk. The thing that all these parents have in common is that their child’s other parent doesn’t agree with them about vaccinations, so they have looked to the law for guidance.

So what happens if separated parents can’t agree on medical decisions for their children? Often, these disagreements ultimately wind up in Court, and the Court will make the orders that they find are in the best interests of the child. These orders relate to parental responsibility.

What is parental responsibility?

Parenting orders will sometimes allocate parental responsibility to one parent or another. The parent with parental responsibility is the parent who makes decisions about long-term issues relating to their children’s welfare, including their medical care.

The default position is that it is in the children’s best interests for both parents to share parental responsibility. This means that the large majority of separated parents are required to work together and come to an agreement about their children’s medical care.

In cases where the parents share parental responsibility but are truly unable to agree on the specific issue of medical decisions, the Court will sometimes allocate responsibility for these decisions to one parent or another.

With the various COVID-19 vaccinations not yet being approved for children, we are yet to see how the Court will determine a dispute between parents over whether to have their children vaccinated against COVID-19. However, we can take some guidance from previous cases relating to vaccination in general.

The decision of Maniken & Taube (2021)

One significant case is the 2021 decision of Judge Taglieri in Maniken & Taube. Prior to Final Hearing, the parties had managed to reach an agreement on almost all issues, except whether the children should be vaccinated. This question was left to the Court.

The Mother was strongly opposed to vaccination. She relied on a number of scientific research papers about potential adverse reactions to vaccines and argued that there was a particular risk to her children, due to their various allergies and her own auto-immune disorder. Essentially, her argument was that vaccinating the children was not necessary, as the diseases vaccines protect against are treatable, and overall the risks of vaccination outweighed the benefits.

The Father was in favour of vaccinating the children and generally stated that he would follow the recommendations of the children’s doctors. He argued that none of the mother’s medical evidence was ‘independent empirical evidence’ supporting her belief in the risks of vaccines and that the consensus in the medical and scientific community, as well as the Australian Government’s official health advice, is that vaccines are safe for children and in the best interests of their health. The Father argued that given the Mother’s attitude towards vaccinations, he should be awarded sole parental responsibility for decisions relating to the children’s healthcare.

The Court was ultimately required to decide whether the Mother’s position about the risks of vaccines was correct, or whether the benefits of vaccinating the children really did outweigh any risk.

His Honour gave significant weight to the recommendations of the Australian Government and the World Health Organisation (“WHO”), and less weight to the material relied on by the Mother. His Honour found that this research overall was either biased or inconclusive, and did not support the Mother’s conclusions that vaccines, in general, were unsafe.

The Court decided that while the Mother’s beliefs were genuine, they were unreasonable. His Honour found that the Mother had a strong bias against vaccination and was unlikely to comply with the recommendations of the children’s doctors, or any specific Order that the children be vaccinated. Accordingly, His Honour awarded the Father sole responsibility for the children’s medical decisions.

Religion and vaccination

The decision above is in line with a number of previous decisions of the Courts, including the 2012 decision of Howell & Howell.

In Howell, there was also a religious component. The Father was a devout member of “Religion T” (the exact religion was redacted from the published decision), which rejected most Western medicine, including vaccinations, in favour of traditional or homoeopathic remedies. In addition, the Father was a strict vegetarian, to the extent that he opposed vaccinations due to the use of animals in the development and testing process.

During the relationship, the parents had both agreed to raise the child in accordance with Religion T, and accordingly, the children had not been vaccinated. By the time the matter came to Final Hearing, the Mother had changed her position and wished to have the child vaccinated.

Ultimately the Father’s religious beliefs did not help him in Court, as Orders were made for the Mother to have sole responsibility for the child’s medical decisions. His Honour found that this was in the child’s best interests.

How do these decisions relate to COVID-19?

What emerges from these cases is that generally, the Court will decide what is in the children’s best interests based on the expert evidence before it. Greater weight is given to reputable mainstream medical and scientific literature, which includes the official recommendations of various government bodies. These publications, historically, have been unanimously in favour of vaccination, and the Court has made Orders in line with those recommendations.

We will need to follow closely the development of scientific data in relation to the various COVID-19 vaccinations, and the recommendations of the medical community at large in relation to their use on children.

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This article was written by one of our network partners Kayte Lewis from Voice Lawyers and is re-shared with permission.

Principal Lawyer Kayte Lewis is a NMAS accredited mediator, sits on the Legal Aid Family Law and Domestic Violence panels, and is a panel mediator on the Family Law Settlement Service.

Original story link here.

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