My ex-partner and I disagree on whether we should vaccinate our children against COVID 19. What should I do?

18/01/2022

As children aged 5 to 11 are now eligible to receive their COVID-19 vaccine, for some parents it may be difficult to decide whether to vaccinate their children, and may be particularly problematic if both parents do not agree to have their children vaccinated.

If separated parents cannot reach agreement on vaccinating their children, there are a number of options to consider.

  1. If it is appropriate and safe to do so, parents may wish to seek further information and advice from their GP or a specialist immunisation service to make informed decisions about the vaccine and attempt to reach agreement. The National Centre for Immunisation Research and Surveillance answers frequently asked questions which can be accessed with this link - https://ncirs.org.au/covid-19/covid-19-and-children-frequently-asked-questions.
  2. If an agreement cannot be reached after discussing matters directly with your ex-partner, engaging in mediation may be of assistance to try to resolve any concerns or disputes in a timely manner. Seeking advice from an experienced family lawyer about alternative dispute resolution methods is highly recommended.
  3. If family dispute resolution fails, the next step would be to make an application to the Federal Circuit and Family Court of Australia to seek an order regarding the vaccination.

Can children be vaccinated without both parents’ consent?

Parents should not vaccinate their children without the consent of both parents. There is a presumption of equal shared responsibility that parents have in relation to their children which arises from the time the child is born.

There is an obligation on parents to consult each other regarding important medical issues regarding their children which would include COVID-19 vaccinations. Children between the ages of 5 and 11 must have a parent or guardian provide consent to the vaccination before it is administered.

Children aged 12 to 17 may provide their own consent, but only if they are deemed to be a mature minor capable of understanding the information relevant to their decision and the effect of that decision. An assessment whether a child is able to provide their own consent must be made by an experienced health professional such as a GP or senior and experienced immuniser.

If parents have a Court Order regarding their children, then immunising a child without the other parent’s consent may amount to a breach of the orders. In that regard, it is important parents seek legal advice regarding Court Orders and before making any unilateral decisions about their children regarding vaccinations.

Court Proceedings

If Court proceedings are necessary, it is important that parties have first engaged in family dispute resolution as noted above.

The Federal Circuit and Family Court of Australia has a specialised and streamline COVID-19 list to deal specifically with issues arising from the COVID-19 pandemic that impact on children. This would include disputes about children being vaccinated but also deals with children spending time with parents who are impacted by COVID-19, and also cases where access to a child may have been limited because one parent is unvaccinated.

The Court attempts to hear these matters quickly, particularly if there is some urgency involved in having a decision made promptly.

Whilst there are no specific judgments from the Court about COVID-19 vaccinations as yet, the court has made a number of judgements involving non-COVID immunisations over many years. In these cases, the court weighed up multiple factors, including Western medical expert evidence, and in approximately 77% of cases we reviewed, the Court decided in favour of the parent who supported vaccination.

Ultimately, disputes concerning the vaccination of children can be incredibly emotional and difficult to navigate. If you require assistance regarding family law and vaccinating your children do not hesitate to contact Gordon Legal. Our family law team are highly experienced and can help you navigate the legal processes involved in resolving this dispute.

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