Vaccinations have been a key issue of 2021 and will continue to cause disagreements well into 2022. It is only natural that disagreements in relation to vaccinations are spreading to parents who are involved in child custody and family law matters.
There has been an early challenge heard before the High Court of Australia in the recent case of Covington & Covington (2021) FLC ¶94-014. In this case the mother was opposed to her child being vaccinated and was appealing a prior court order in place that her child be vaccinated. The previous order was a consent order, meaning that, at the time the order was made, the mother provided consent that her child could be vaccinated.
As she had changed her mind, the mother was seeking to withdraw her consent. She argued that s51(xxiiiA) of the Commonwealth of Australia Constitution Act provides a freedom from compulsory vaccination and therefore court has no power to order her child to be vaccinated now that she claimed she had withdrawn her consent.
In the end, the appeal was unsuccessful. The Full court found that the mother’s argument had no merit and so the child was vaccinated.
When handing down its decision, the court also noted that the original order was made by consent and the mother could not successfully argue that her consent was withdrawn.
This can pose a potential problem for parents who are not wishing for their child to be vaccinated but have previously provided consent.
Seeking to overturn consent orders can be difficult.
It may be the case that parents and lawyers will need to more carefully consider what specific types of medical procedures and vaccinations are to be covered by blanket parenting agreements and orders in the future. This is especially important when it comes to new or experimental medical procedures that may carry some heightened risk.
Until recently, very few countries have allowed children to be vaccinated. This issue may be in its infancy and where a parent has already provided consent for a child to be vaccinated, they may have limited legal options of withdrawing their consent and preventing the vaccination from taking place.
However, not allowing a child to be vaccinated where a parent has not previously provided consent for the vaccination is still an untried legal argument. With the introduction of vaccinations for 5-12 year olds across Australia, this point may soon get tested in court. Until there is a definitive position, that is, until further decisions regarding the issue have been handed down by the court, parents will have to discuss the issue and it is best they reach an agreement amicably.
Our family lawyers can help provide you with the latest advice on family law and regularly provide updates on cases such as these that transform family law.
If you require advice or assistance in your parenting/children’s matter, speak to one of our family lawyers today. Call us on 1300 907 335 or complete an online form and we will respond promptly.
Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.
© PCL Lawyers 2021
Theresa is the Team Leader of our Family Law and Estate Planning practice groups. Theresa's practice includes acting for clients...