Vaccinations, Children and the Court

Undoubtedly, the COVD-19 world we live in has raised many difficult questions for individuals and families alike. First and foremost, whether or not to get the jab is a hotly debated topic. But what happens if parents disagree about vaccinating their children?

The Federal Circuit and Family Court of Australia (“FCFCOA”) are yet to determine a parenting dispute specifically concerning whether a child should receive a COVID-19 vaccine. However, the recent decision of Covington v Covington (2021) 63 Fam LR 173 (“Covington”) provides a helpful indication of how such a dispute may be determined. In this matter, the Full Court of the Family Court of Australia (now FCFCOA Division 1 – Appellate Division) confirmed that it does have jurisdiction to order that a child be vaccinated.

In Covington, final parenting orders were made by consent following a final hearing in December 2020. The orders provided for, amongst other things, that the child receive a vaccination. However, the mother subsequently withdrew her consent and notified the Court. Thereafter, the mother filed various applications in various courts essentially seeking to set aside the consent orders. She also sought to challenge the constitutional validity of what she termed “compulsory vaccination”. That argument, although misconceived, is beyond the scope of this article. Nevertheless, on 13 April 2021, her application came before the Full Court. The Full Court confirmed that it does have jurisdiction to make an order for a child to be vaccinated and emphasised that such an order does not require the parents’ consent. Relevantly, section 65 of the Family Law Act 1975 (Cth) provides that a court may make such a parenting order as it thinks proper in proceedings for a parenting order. That order can be validly made even if there is no consent by the parties to the proceedings. Therefore, in Covington, the order to vaccinate the child was not invalidated simply by the mother withdrawing consent.

It is important to note that each matter will ultimately turn on its facts and will be determined in accordance with the best interests of the child.

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Article by Kirstin Attard
Photo by CDC on Unsplash