For those who may be unaware, the Therapeutic Goods Administration recently approved the Pfizer COVID-19 vaccine for children aged 12 to 15.

Of course, while it could be some time before most children are included in the wider vaccine rollout (if the adults’ rollout is anything to go by), as a family lawyer, I can envisage another tranche of pandemic-specific cases coming through the Courts with separated parents at odds over whether or not their children should be vaccinated with the Pfizer vaccine.

In theory, the legal process of determining whether or not children receive the Pfizer vaccine should be no different than determining whether or not they receive their inoculations at birth.  However, I suspect that the reality will be that many arguments will be made for and against the Pfizer vaccine specifically.

So, what is the process generally when parents cannot agree about vaccinating their children? Let’s start with the law itself. The Family Law Act 1975 (“the Act”) provides that parents have joint parental responsibility for their children until they have a parenting plan or court order that confirms that or says otherwise. Where parents have joint responsibilities, they must consult with each other in relation to those long-term type decisions.

When parents cannot agree, the first step is for the parents to attend mediation. If agreement is reached at mediation, then a parenting plan can be prepared or the parties can take their agreement to a Family Lawyer to have it converted into Consent Orders for approval by the Family Court. If the parents remain entrenched in their opposing views as to vaccinations, then a s.60i certificate is issued to the parents which then allows either to apply for Parenting Orders in the Federal Circuit Court and Family Court of Australia.

When determining whether or not to permit children to be vaccinated, the Courts take heed of s.60CC of the Act which sets out the primary and secondary considerations to take into account. It must be in the children’s best interests for them to be vaccinated. To assist the Court in making an informed decision, evidence from medical experts about the benefits and risks of the relevant vaccinations is necessary.

In the recent case of Covington & Covington (2021) FLC ¶94-014 the Full Court of the Family Court of Australia emphasised that the Family Court does have jurisdiction to make an Order that a child be vaccinated.

In this case, the mother appealed against Orders which, in effect, required the parties to support their 11year-old child in receiving vaccinations as recommended by the child’s paediatrician. The mother was opposed to the child being vaccinated. She sought to have her appeal heard by the High Court of Australia on the basis of s 51(xxiiiA) of the Commonwealth of Australia Constitution Act, which forbids the Commonwealth provision of medical and dental services and provides a freedom from compulsory vaccination.

The Full Court found that the mother’s argument had no merit. The Court also noted that the Orders from which the mother sought an appeal had been made by consent, and that the mother could not successfully argue that her consent was withdrawn.

Historically, the Family Court has favoured the assessment that is in the best interests of children to be vaccinated in accordance with the National Immunisation Program Schedule, unless there is a medical reason (supported by expert medical evidence) to the contrary (eg. Duke-Randall & Randall [2014] FamCA 126).

In terms of the Pfizer vaccine, or indeed any other vaccine that may come onto the market and be approved for children, the Courts will need to weigh up the risk to the particular child of receiving a COVID-19 vaccination on the basis of the medical evidence available, against the risk to the child of contracting COVID-19 and the social impacts that being unvaccinated may have on the child (eg not being able to attend sporting activities).

The Family Court has a COVID-19 List to deal with urgent matters in the context of the pandemic. In March 2021, the List was expanded to cover a broader range of circumstances, including disputes as to vaccinating children against COVID-19.  I anticipate that when the rollout of the vaccine for children begins, more parents will be wanting to utilise the Court’s services to determine whether or not their children get the jab.

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