The COVID-19 Vaccine: What to do if both parents don’t agree on vaccinating their child?

KEY TAKE-OUTS

• The COVID-19 vaccine is declared suitable and safe for children to receive.
• If there is a disagreement between parents and/or guardians as to whether their child should receive the vaccine, it is encouraged to be settled outside of the Court.
• If the parents are unable to agree the Court will make a decision that aligns with the best interest of the child.
• If a parent opposes vaccinating their child, they would be required to provide expert medical evidence that suggests that the risk of the vaccine outweighs to the risk of contracting COVID.

What are the current government recommendations for vaccinating children?

The COVID-19 vaccine has been declared safe and suitable for children to receive amidst their return to school. Whist the vaccine is not mandated by the government, it has been strongly encouraged that children between the ages of 5-17 years old should get vaccinated.

Due to the child’s inability to legally consent to medical procedures, including the COVID-19 vaccine, it is the parents and guardians of the child that must consent to receive the vaccine. The government has released the following guidelines.

• In order for a child aged 5-11 years old to be vaccinated, the government requires that parental consent is given,
• For 12-15 year old’s, parental consent is not required as children are encouraged to exercise their own consent in receiving the vaccine, and
• For 16 year old’s and above, the individual exercises consent without the need for parental interference.

Children with underlying health conditions, of Aboriginal or Torres Strait Islander descent and/or in ‘hotspot’ areas of concern, are further encouraged to be vaccinated.

What to do if both parents don’t agree?

As a result of the abovementioned requirements of parental consent, there has been an increase in disputes as to the suitability of the COVID-19 vaccine.

Under the authority of the Family Law Act 1975, it is presumed that both parents have equal shared parental responsibility for major decisions relating to the child, including medical decisions, including providing consent for vaccinations. This means that neither parent is entitled to make a unilateral decision regarding their child’s vaccination, and the decision should be made jointly.

However, parents do not always agree when making major medical decisions. It is strongly recommended that the parents of the child attempt to resolve all disagreements before engaging the Court for assistance. Doing so could involve attending a GP appointment together to weigh up options, having meaningful private discussions, or attending mediation.

If the parents and/or guardians are unable to reach an agreement between themselves, the Court will make a decision that is aligned with the best interest of the child. In determining the best interest of the child, the Court will look to expert medical evidence regarding the vaccine. Given that the Court assigns greater weight to the protection of the child from physical or psychological harm, if a parent were to oppose vaccinating their child, they would need to produce expert medical evidence that suggests that the risk of vaccinating outweighs the risk of contracting COVID.

In the recent case of Makinen v Taube [2021] FCCA 1878, the Court awarded sole parental responsibility to the parent that was in favour of vaccinating their child and consequentially, ordered that the children be vaccinated according to recommendations given by their GP.

Therefore, although a singular parent is unable to solely and unilaterally consent to vaccinate their child, absent expert medical evidence that the risk of the vaccination outweighs the benefit, the Court will likely decide that it is in the best interests of the child to be vaccinated.

ABOUT LARA MENON:

Lara joined the Coutts Lawyers & Conveyancers Legal team in August 2018 and is currently working as a Lawyer in our Criminal and Family Law team.

Earlier in 2019, Lara was selected by the NSW Law Society to undertake an internship with the NSW Coroner’s Court, working as a Judge’s Associate for the Deputy State Coroner.