What happens if parents cannot reach an agreement about vaccinating their children with the COVID19 Pfizer vaccination or any other vaccinations or immunisations?
The Australian Technical Advisory Group on Immunisation (ATAGI) has approved the Pfizer vaccine as being safe for use in children aged 5 to 11 years. From 10 January 2022 children aged 5 to 11 years can now receive a vaccination against COVID19.
Whether or not a child should receive a vaccination is a parental responsibility decision. Generally speaking, both parents have and share parental responsibility for their children.
Parental responsibility includes the responsibility to make decisions about medical treatment (and therefore vaccinations) for children and making decisions about other major issues like where children live, their religious upbringing, and where they go to school.
If an agreement cannot be reached between parents about whether their children will be vaccinated then a Court will need to make a decision on this issue, and this decision will be based on what is the best interests of the children.
In some circumstances, when there is a dispute between parents about a major decision in their children’s life, like whether to vaccinate, the Court may grant sole parental responsibility to one parent in relation to the particular issue. This is exactly what occurred in Australia in the recent case of Makinen & Taube [2021] FCCA 1878.
This matter involved two children aged 12 and 8 years old. The mother was opposed to the children having any vaccinations including vaccinations for COVID19, the children had not received vaccinations throughout their childhood. The father wanted the children to be vaccinated, and sought an Order that he have sole parental responsibility with respect to decisions regarding vaccinations/immunisations for the children.
Judge Taglieri noted that while the mother’s opposition to vaccination was “based on her genuine beliefs, I do not regard her attitude or beliefs to be reasonable on all the evidence before me”. In addition, the Judge noted that without a sole parental responsibility Order it was unlikely agreement could ever be reached between the parents and therefore the children were unlikely to ever receive a vaccination.
As a result, Judge Taglieri made an Order that the father be granted sole parental responsibility in respect of all decisions relating to the children’s immunisation and vaccination. A further Order was made that the father will ensure the children receive the vaccinations/immunisations as recommended by the children’s general practitioner. It was noted by the Judge that the father “is likely to be more compliant with recommendations by a doctor or medical professional”
In considering her decision Judge Taglieri said:
“The Commonwealth government’s recommendations about vaccination contained in the Australian Immunisation Handbook along with advice on its website can be seen to have developed and compiled over many years…………..This literature includes publications from widely known, reputable and leading scientific and medical journals such as the Lancet and the Australian Medical Journal. The recommendations/advice are also referenced to the World Health Organisation (WHO). WHO is commonly known to be a United Nations body responsible for international public health and I take judicial notice of this fact.”
Judge Taglieri went on to say:
“In my view, the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother’s affidavits. The former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community. In any event, the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.”
The Court will determine each matter based on the unique circumstances of the child/ren and family and will need to weigh up the risk to each child of receiving a vaccination or immunisation based on the best medical evidence available.
If you would like to speak to one of our family lawyers in more depth about parental responsibility and vaccination please contact us on 03 95960222.
Author: Emily Gendall, Lawyer
