As the COVID-19 pandemic demonstrated, vaccination can be a fraught and divisive issue in society, particularly when people are compelled to get inoculated by public health laws, but have objections to receiving a vaccine.
Vaccination (of any kind) is and always has been particularly contentious when it arises in parenting arrangements for children where the two parents (or parties) disagree on whether or not their children should be vaccinated.
This situation was recently played out in the 2021 High Court case of Covington v Covington. Although the facts of this case did not expressly deal with the Coronavirus, the decision provides guidance as to how the Court will deal with childhood vaccination issues in the future.
The outcome of this case was Australia’s highest Court confirming that the Family Law Courts have the jurisdiction to order a child to receive vaccinations if it is determined that to do so is in the child’s best interests.
The facts of the case
Part way through the hearing of a parenting dispute, the mother, in this case, had consented to parenting Orders that provided, among other things, for the then 10-year-old child to receive all future vaccinations as recommended by the child’s treating medical professionals. The making of this Order was aligned with the position of the father and supported by the Independent Children’s Lawyer, based on the advice of a pediatrician.
After the Orders were pronounced in Court, but before they were published, the mother withdrew her consent to the Orders – including the Order providing for the child to be vaccinated.
The mother later relented in her objection to the bulk of the parenting Orders but remained opposed to the child’s vaccination order.
The mother’s argument
The mother filed several appeals, seeking to have the Orders that provided for the vaccination of the child set aside.
Her two main arguments were:
- she had only consented to the Orders because she had been subject to ‘duress, coercion and pressure’; and
- in the absence of her consent, the Orders violated the Australian Constitution.
Both arguments were rejected by the Full Court of the Family Court of Australia. The section 51 constitutional argument was dismissed as having no merit, the Family Court confirmed it has jurisdiction to make an Order providing for a child to be vaccinated, and that the order was not dependent on parental consent to the vaccination
In her 2021 application to the High Court, she repeated her reliance upon the prohibition of civil conscription as proved in the 51(xxiiiA) Australian Constitution. The mother alleged the Orders contravened the section that prohibits the Commonwealth Government from requiring doctors or dentists to engage in or perform medical and dental services, known as ‘civil conscription’.
The High Court appeal
The High Court dismissed the mother’s application for special leave to appeal the decision of the Federal Circuit and Family Court of Australia (FCFCOA), confirming that the newly combined Court is the appropriate jurisdiction for decisions in relation to childhood vaccinations. The Court can make such an Order if it is determined to be in the child’s best interests, irrespective of parental consent.
The FCFCOA jurisdiction is not dependent on whether or not the parties consent. Section 65 of the Family Law Act 1975 (Cth) provides that in proceedings for a parenting Order a Court may make such Order as it thinks proper (alternatively or additionally see s 67ZC of that Act) and that Order can be validly made even if there is no consent.
What this means moving forward
Whilst there is no doubt that the Court has the power to order that a child be vaccinated, even if doing so is against the wishes of a parent, it is not a power that is exercised in an arbitrary or capricious manner.
A parent who is opposing the other parent’s application for Orders requiring the immunisation of children must produce medical evidence of a risk that immunisation poses to a child. In cases involving more than one child, the evidence must be adduced that is specific to each child.
A parent who is seeking Orders for immunisation must produce medical evidence that each child is not at risk of any adverse reactions.
Each party must support their position with an immunisation plan from the child’s doctor including evidence of how the child would be restricted by not being immunised or how they may be adversely affected by immunisation (as the case may be).
Speak with expert family lawyers
The fractious issue of vaccinating children when parents disagree, particularly when they have separated, was thrown into sharp relief as the Covid-19 childhood vaccination program was rolled out across Australia for all children and adolescents aged 5 years or older in January 2022, with parents differing on whether their children should receive the new vaccinations or not.
On 3 August 2022, recommendations were made in relation to COVID-19 vaccine use in children aged 6 months to <5 years.
The case of Covington v Covington confirms that the FCFCOA has jurisdiction to Order a child to be vaccinated on the basis of expert medical advice that it is in the child’s best interests, regardless of parental consent.
If you need more information about the implications of this case, whether the dispute is about general vaccinations, Covid-19 vaccines or both, contact our expert family law team.