In Queensland, the start to the school year has been delayed by two weeks and commences on Monday the 7th of February. One reason stated for why this was decided, was to allow parents time to organise for their children’s first dose to have been administered before the return to school. Just this week, the Queensland Chief Health Officer has indicated that she is concerned about the current child vaccination numbers, and that she believes they should be higher. With this strong messaging in the media, these issues for parents with shared parental decision making are now at the forefront.
Of the parents who are separated or divorced, there are some common questions we are being asked:
- Do kids need to be vaccinated for school?
- Can you vaccinate a child with one parent’s consent?
- Can you get the COVID vaccine without parental permission?
- What happens if we cannot agree on consent for vaccination?
Do kids need to be vaccinated for school?
No. Children are not required to be vaccinated for Covid-19 to attend school in Australia. Much of the advice on the Queensland Health website encourages vaccination however, at the time of publishing, there are no mandates for children to be vaccinated on State or National levels.
We are hearing from our clients that some private schools are strongly encouraging vaccination, but are not mandating it.
Can you vaccinate a child with one parent’s consent?
No. Until a child is 18 years old, any decisions relating to long term decision-making for a child, such as international travel, medical procedures, including vaccinations, must be consented to by both parents.
Even if one parent has minimal time with a child, if you both have joint parental responsibility, either specified by Orders or not, consent is required by both parents.
In the event the Court has made Orders for sole parental responsibility, to a parent or a grandparent for example, then that is the only instance when they can make the sole decision to vaccinate a child without the additional consent of the other parent.
Where there is no Order, you and your child’s other parent must consult with each other to determine whether to vaccinate your child, or not.
Can you get the COVID vaccine without parental permission?
Older children may have their own wishes and views about the Covid-19 vaccination. It is wise for parents to be mindful of this, regardless of your own standpoint. In the event a child wishes to be vaccinated, and one parent does not provide consent, this issue can be determined by the Court. The Court does take into account the wishes of older children as part of its goal to serve the best interests of children. If a dispute like this were to be determined by the Court, evidence from an older child about their views becomes increasing relevant if the Court is required to make a decision.
What happens if we cannot agree on consent for vaccination?
If no agreement can be reached, the first step for both parents is to seek independent advice from a family lawyer to understand their options and get assistance with dispute resolution such as mediation, having had the benefit of advice.
In the event your dispute cannot be resolved, your matter may be able to be filed in National Covid-19 List. The Federal Circuit and Family Court of Australia set up a National Covid List to manage the most urgent family law disputes that have arisen as a result of the Covid-19 pandemic.
The pandemic has brought about many issues including parents not returning children to their other parent due to concerns about cross-border travel or border restrictions, or children being at risk by the other parent’s vaccination status or work environment. The Covid-19 list is where these urgent matters relating to the best interests of the children are managed with urgency.
In the event you and your child’s other parent cannot come to an agreement about vaccination, to successfully file your dispute for the Covid List, you must fulfil these criteria:
- This dispute must be directly connected to the Covid-19 pandemic. Or, if indirectly, is significantly connected to the pandemic
- The issue is urgent, or a priority
- You have made reasonable attempts to resolve the issue, but it remains unresolved
- An affidavit is provided that covers all criteria
- The matter can be dealt with via telephone or video link
Source: Federal Circuit Court and Family Court of Australia – National COVID-19 List
Once an application is filed, each matter is considered and then triaged. The Court then lists these with urgent matters being heard within 3 business days and priority matters being heard within 7 business days. If the filing doesn’t meet the criteria, then it may take longer. Since the advent of the Covid List, it has been reported in the media that there have been 680 applications nationwide. About 80% of those have been accepted and heard during that time frame. Ordinarily, these matters could take between 6 and 10 weeks to be heard.
Important to consider for parents who do intend to go through the Covid-19 List is that the Court will make the decision about whether their child is to be vaccinated for Covid-19, or not. The Court has the power to make Orders about mandatory vaccination, as it can make any parenting order that it deems appropriate. Section 65 of the Family Law Act 1975 permits the Court to make any parenting order that it deems appropriate. Section 76ZC of the Act also permits the Court to make orders relating to the welfare of children.
In any matter involving a child, the Court’s paramount consideration is the best interests of the child.
What will be required if your application is to be heard by the Court
The Court will require expert evidence regardless of which side of the vaccination fence you sit.
This evidence might include:
- An affidavit from a GP, paediatrician or other specialist that confirms the child has a specific underlying medical condition or other issue they see them for.
- An affidavit from a doctor, paediatrician or other specialist that confirms that the child (or other child within the family) is in a high risk group.
- While it may not be determinative, if a child has severe anxiety about receiving the vaccination, an affidavit from a child psychologist or psychiatrist may be useful.
Typically, however, most applications we are seeing are filed by the parent who wishes their child to be vaccinated.
Some parents may not be in a rush to vaccinate their child. They may be of the view that once there has been more research, or more children have received the vaccination, they may be open to it. A ‘No’ to vaccination now, might not be a ‘No’ to vaccination forever. As parents, there may be a number of pros and cons to discuss, and you may need support to work through that process.
We appreciate that there will be people who have strong views about the pros and cons of having their children vaccinated as was the case prior to Covid-19. Whatever the case, it is wise to communicate early. Both parents should seek independent legal advice and discuss your specific circumstances with a family lawyer to understand where they stand and the process which applies.
A specialist in family law will have insights into past matters of a similar nature, which can indicate what factors may be likely to be considered if decided by a Judge, in the event you need to proceed to Court. Having this information can sometimes help parents to come to a decision together, where they couldn’t before, and subsequently remove the need to go to Court.
