Covid vaccination for children – who decides when parents can’t agree?
Objections to Covid vaccination for children on various grounds
Covid vaccination for children has been a hotly disputed topic. What happens when one parent wants their child to be vaccinated against Covid-19 and the other parent is dead against it?
They might be opposed because they don’t believe the vaccine has been proven safe for children. They might be opposed to vaccination for ideological or religious reasons. They might fear it could have unacceptable side effects, even in the long term.
Influx of questions on legal aspects of Covid vaccination for children
I have been approached by many people in recent months asking what the law says about Covid vaccination for children and whether a parent has the legal right to have a child vaccinated when the other parent disagrees. Other people want to know whether they have the legal right to stop their child being vaccinated.
The inquiries began almost immediately after the government announced in January 2022 that Covid-19 vaccinations were open for children from the age of five.
Some parents insist they want to have their child vaccinated to protect them from the Covid virus when they go to school and mix with other people, but the other parent refuses to allow it.
Other people want to stop their partner or ex-partner getting their child vaccinated, as they fear it could harm the child.
Law provides framework for establishing responsibility for childhood vaccinations
Although the Family Law Act 1975 does not spell out which parent has the right to determine whether to vaccinate their child or not, the Act does set up a framework for establishing parental responsibility in matters such as vaccination of a child.
It presumes each parent has an equal responsibility for all major decisions relating to their child, such as medical matters, education and religion.
That means neither parent can act without the consent of the other, except of course where there has been family violence or child abuse.
Next steps if parents cannot agree on Covid vaccination for children
If after mediation, the parents still can’t agree on vaccinating their child, they may need to apply to the Federal Circuit and Family Court for a decision. This would involve filing applications, affidavits, legal submissions and evidence from medical experts.
A judge then rules for or against the vaccination, or may give one parent responsibility for the decision. Children aged 12 to 15 may be asked what they want. Sixteen year olds with the capacity to consent can decide for themselves.
Judges typically rule in favour of vaccination
Recent court decisions show judges have tended to rule in favour of the parent who wanted their child to be vaccinated, because medical evidence showed it was in the best interests of both the child and the community. (Please see Should my child have a COVID vaccine? Here’s what can happen when parents disagree, The Conversation, 10 January 2022.)
The parent opposing the vaccination would have to produce cogent medical evidence that it would harm the child for the judge to rule in their favour.
For instance, in the case of Lamos & Radin, the judge agreed there was a slight risk of harm in vaccination, but “as a general proposition the risks are significantly outweighed by the benefits”.
For more information please see my 2023 article Focus on best interests of the child in planned changes to family law.