Is Consent from both parents required for children to receive the COVID-19 Vaccination?

With children back to school and vaccinations now available for school aged children, we are starting to see disputes arise between parents as to whether or not their children should be vaccinated. So how do you find a resolution?

If you are in dispute with the other parent about whether or not to vaccinate your child – whether it be a vaccination for COVID or any other vaccination – you should initially consult with the other parent and attempt to reach an agreement on the issue.

EQUAL SHARED PARENTAL RESPONSIBILITY

Under the Family Law Act 1975, each parent is presumed to have equal shared parental responsibility in relation to the making of long term/significant issues affecting your children, including but not limited to:

  1. Medical treatment
  2. Education
  3. Religion
  4. Change of Name
  5. Relocation

If you and the other parent are unable to reach an agreement in relation to the vaccination of your children, the Federal Circuit Court and Family Court of Australia has the power to make decisions about your child’s health and they will do so having regard to the paramount consideration – what is in the best interests of the child.

THE NATIONAL COVID-19 LIST

A National COVID-19 List has been created to deal with issues that have arisen as a result of the COVID-19 Pandemic. If an application is made for inclusion in the COVID-19 List, your application will be listed generally within 36 hours of the date of filing it. The first Court date is before a Registrar however and therefor the court can only make orders on that day by agreement unless the matter is set down before a Judge.

Ultimately, if a Judge is required to determine the issue at a Hearing, arguments may be made to the Court as to the detrimental impacts of the vaccination. However, in our experience, unless there is some expert medical evidence supporting that there would be an adverse effect on the particular child or children of having the vaccination, given the State and Federal Government policy in support of vaccinations, the Courts have been minded to make orders in support of the child or children being vaccinated.

The recent case of Makinen & Taube [2021] FCCA 1878 saw the Federal Circuit Court of Australia order that the Father have sole parental responsibility in relation to the issue of vaccinations and for that purpose, it was intended that the child’s vaccinations occur in accordance with the National Immunisation Program or as recommended by the children’s treating medical practitioner.

If you have a dispute with your former partner about whether your children should receive the COVID-19 vaccination, you should ensure hat you have expert medical evidence supporting how the vaccination would have an adverse impact on your children.

Otherwise, without any evidence of risk to the particular child, the Courts are likely to determine that it is in a child’s best interests to be vaccinated against COVID-19 and in accordance with the National Immunisation Program.

FILING AN APPLICATION

If you would like to file an application for inclusion in the COVID-19 List to deal with a COVID-19 vaccination issue, please contact our experienced family lawyers to seek advice as to whether you will meet the criteria for an application.

Toowong Family Lawyers – (07) 3870 8244

Albany Creek Family Lawyers – (07) 3264 7692

Noosa Family Lawyers – (07) 5449 7500

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