By Telise Kelly - 19 Aug 2021
With today's announcement that the Pfizer COVID-19 Vaccine
has been approved for children aged 12 to 15 years, many parents
will now be considering whether to vaccinate their children. But
what happens when two parents (who are legal guardians of their
children) can't agree on this critical issue?
The Care of Children Act 2004 confirms that both guardians of a
child have the right and responsibility to make decisions on
"important matters" which affect their child, regardless of whose
day-to-day care the child is in. Guardians are expected to
agree on such decisions and implement them jointly. Non-routine
medical treatment is one such "important" decision (among others,
including schooling and international travel).
The Family Court has found that vaccination is non-routine
medical care. That means both Guardians need to agree
before a child can receive any vaccination, including the COVID-19
Pfizer jab.
If both Guardians cannot agree, the dispute must be determined
by the Court. This can be a difficult issue for a parent who
wishes to have their child vaccinated, in circumstances where the
other's parent's refusal to consent effectively achieves their
goal: no vaccination. The onus is placed on the pro-vaccination
parent to seek the Court's assistance or face the possibility of
adverse consequences for taking unilateral action.
In the most recent decisions out of the Family Court on the
issue of vaccination, the Court has upheld the Ministry of Health
Guidelines on public immunisations when deciding whether a child
should be vaccinated. On each occasion, the Court preferred
the Ministry of Health's Guidelines to the evidence of the parent
wishing to prevent vaccination, particularly where there was an
absence of medical evidence to demonstrate a specific risk of
vaccinating this particular child. On both occasions,
the Court confirmed that the child should be vaccinated in
accordance with the Ministry of Health's advice.
Thus, it would seem that there is a trend within the Family
Court towards vaccination, so long as it is recommended by the
Ministry of Health. However, on each occasion the Court has
accepted and confirmed that vaccination is a guardianship issue and
thus, its intervention is required in order to resolve the dispute
between guardians.
In light of today's announcement, and the requirements that
Guardians agree and act jointly with respect to vaccination, it
seems that the Family Court will see more of these disputes coming
before it.
If you believe you might be facing a difficult vaccination
debate with your child's other guardian, please contact any member
of our Family Law Team.
Contacts
Telise
Kelly
Dharsh
Nanayakkara
Surendra
Bennett