Vaccination is a divisive topic. When parents separate and can’t agree when a child should be vaccinated or not, this can become an even bigger issue.
As with any dispute surrounding arrangements for children, the ‘best interests of the child’ is the paramount consideration. If the dispute surrounds whether or not to vaccinate a child, then each party must provide evidence supporting why their position is in the best interests of the child.
Generally, those arguing ‘against’ vaccination will argue that vaccinations put the children at risk due to potentially harmful side effects whilst those arguing ‘for’ vaccination will say that the risk of contracting dangerous illness or disease is far greater than the risk associated with potential side effects.
When it comes to making a decision about health issues, there is a presumption that parents will make a joint decision about the health issues for the children. If no agreement can be reached, then the parties can ask the Family Court to decide. The Judge will have to weigh up both parties’ competing proposals and the relevant evidence and consider what is in the best interests of the child.
Examples of this issue in some recent case law include:
• In 2014, one case focused on two children who were unvaccinated due to the mother’s unwavering opposition to vaccinations however after separation the father became increasingly concerned for the children as they were not permitted to participate in extra-curricular activities without vaccinations. Ultimately the Court decided after hearing all of the evidence (which included expert evidence from medical professionals), in favour of vaccination and the disadvantages to the children significantly outweighed any alleged risk of harm to the children by being vaccinated, specifically noting “there is no evidence before the Court that these particular children would be adversely affected by being vaccinated”. As such an Order was made in favour of the father’s application for the children to be vaccinated.
• In 2015, a case where the parties were in disagreement about whether or not the child should be vaccinated and the mother sought an order restraining the father from taking steps to vaccinate the child without her consent. The Court was critical of the mother for seeking such an order in circumstances where she conceded that she would never provide consent for the child to be vaccinated because she was opposed to vaccinations entirely. Additionally, whilst the mother had filed evidence with the Court from various practitioners in support of her position about vaccinations, the Court was not persuaded that the practitioners who gave the evidence were qualified to discuss the topic of vaccinations and as such decided there was no evidence in support of the mother’s position saying that it was “not persuaded that an order restraining the father from having the child vaccinated is appropriate for the child’s welfare or in his best interests”.
The key take aways from these examples, is that whilst the Family Court will consider the parent’s beliefs and views about vaccination, the Court is more likely to consider expert medical and scientific evidence to allow the Court to consider what Order would be in the child’s best interests. Additionally, the Court must consider the facts on a case-by-case basis.
If you are having difficulties reaching agreement as to whether your child or children should be vaccinated, then we recommend that you seek advice from one of our experienced family law solicitors on (02) 9523 5535.