Posted on December 14, 2021
In July 2021 the Therapeutic Goods Administration (TGA) approved the Pfizer Covid-19 vaccine for all children aged between 12-15.
A lot has changed in the few short months since this initial approval.
This week the TGA has provisionally approved the Pfizer vaccine for children between 5 and 11 years old, with the rollout of the vaccine to begin in January 2022.
The legal authority for vaccinations
The Federal Circuit Court and Family Court of Australia (Court) is the ultimate authority in relation to all family law matters in Australia. The Family Law Act (Act) sets out the requirements for the Court to consider in making a parenting order.
Parents have parental responsibility for their children unless a parenting order, made by consent or by the Court, provides otherwise. Parenting orders will provide whether the parents have ‘equal shared parental responsibility’ or whether this is given to one of the parents. Matters covered by equal shared parental responsibility are the long term issues concerning a child – such as their education, health, religion and name.
What happens when separated parents don’t agree on whether or not their child should receive the vaccination?
Despite the high rates of vaccination in the community, there are differing and opposing views about whether or not vaccines should be mandated, or even given.
In all cases, a form of mediation is suggested as a first step. Parents are able to seek assistance from their local Family Dispute Resolution Centre, or they can seek these services privately.
It is advisable to obtain advice from your family doctor, or your child’s paediatrician, or in the case of pre-existing medical issues, their treating specialists, for advice about the benefits and risks to your child of receiving the vaccination.
Advice from a lawyer can be sought at any stage in the process, to provide you with legal advice on the most relevant information to obtain to inform yourself of the benefits or risks for your child.
Ultimately, if the steps of trying to reach agreement and mediation are unsuccessful, an application can be made to the Court.
The Court has established a dedicated Covid-19 list which hears disputes arising from matters associated with Covid-19, including vaccinations.
What has the Court said about Covid-19 vaccinations for children?
In a recent case in Hobart, separated parents of two children aged 12 and 8 had agreed each of their parenting matters, with the exception of vaccination of the children, for all scheduled vaccinations, and the Covid-19 vaccine.
The Mother was the primary carer of the children, and sought injunctions preventing the Father from vaccinating the children. She suffered some health issues which led to her reviewing in detail the medical and scientific literature regarding vaccinations and their risks. The Mother submitted that one of the children suffered from severe allergies, and that the low risk of Covid-19 in Tasmania outweighed the potential risks from the vaccine.
The Mother included information in her evidence from various articles and journals which discussed the risks of vaccination, and argued that the Father had taken little interest in vaccination of the children up until now. She argued that the children had not been excluded from kinder or school based on their vaccination status, and the only requirement of the school was that if an infectious disease outbreak occurred, that they would remain at home.
The Father under the agreed parenting orders spent regular and significant time with the children. He was concerned that the bulk of medical and scientific information publicly available supported vaccination of children.
What did the Court decide?
The Court carefully considered the opposite views put by the parties, and also considered the views of the Independent Children’s Lawyer, engaged to represent the views of the children.
The Court found in favour of the government recommendations and published literature regarding vaccination, and reiterated the level of regulation by the TGA which includes rigorous assessment of safety and risks of the vaccinations.
The Court ordered that the Father have sole parental responsibility for medical decisions regarding vaccination. The Father was required to obtain recommendations in respect of vaccination from the children’s GP, with the Mother provided with the opportunity to express any concerns to the GP in writing.
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