The Family Court’s view on children’s COVID-19 vaccinations

Children’s COVID -19 Vaccinations, The Family Court’s view on children’s COVID-19 vaccinations, Merridy Elphick Lawyers

The Family Court’s view on children’s COVID-19 vaccinations

What you need to know

With the recent approval of Covid 19 vaccinations for  children, separated parents might be wondering what  the Federal Circuit and Family Court of Australia  might do  when it comes to determining matters where parents disagree on whether the vaccination is right for their child.

Consent to vaccinate a child in New South Wales is only required from one parent or guardian at the time of booking the vaccination appointment. However, the Family Law Act presumes and expects that both parents will be involved in making decisions for their children, including medical decisions concerning vaccinations.  That  is unless there are Parenting Orders stating otherwise.

The case of Palange Vs Kalhoun

In the recent decision of Palange & Kalhoun,  the Federal Circuit and Family Court of Australia (FCFCA) ruled in the favor of a Mother seeking to have her 10-year-old son vaccinated with the Pfizer paediatric vaccine, against the wishes of  child’s Father who instead sought to wait, stating “once the vaccine has been injected, there is no undoing it.”

In this case, the mother, Ms Palange and the father, Mr Kalhoun, share Parental Responsibility for the child.

The Judge described the parents as “loving and engaged parents who both want what is best for the child but disagree about what that is”.

The parents came before the Court as self-represented litigants earlier this year; Mr Kalhoun arguing that whilst he supported vaccinations in principle, he sought Court Orders that the mother be restrained from having the child vaccinated for COVID-19 until such time as more studies for possible  adverse health effects have been completed.

In the Father’s Affidavit, he argued that the child was fit and healthy, in the age range of those least affected by COVID, with no underlying health conditions, and saw no urgency in getting the child vaccinated.

The Father argued that health advice changes rapidly around COVID-19 and vaccinations and pointed to examples of Britain and Sweden who have not yet authorised the unconditional use of the vaccine in children.

In her Affidavit, the mother argued that the child is particularly susceptible to the effects of respiratory infections, which she believed would put him at increased risk of experiencing adverse effects of COVID-19 if he were to contract it. The mother also argued that if the father considered the child to be fit and healthy, with no underlying medical problems, then the child would not otherwise qualify for a medical exemption from the vaccination.

Interestingly, the mother also argued that the child’s psychological health and social experiences could be negatively impacted if he were to remain unvaccinated, not only because he might be labelled as the ‘unvaccinated’ kid amongst his peers, but that he would be unable to have regular contact with his vulnerable family members. On this argument, the mother relied on evidence that the child was under a Mental Health Plan as the result of his anxiety arising out of the pandemic and lockdowns.

The decision on the child’s COVID-19 vaccination

The Judge noted that “the issue of contested COVID-19 vaccination of children is…a relatively new issue for determination by the Courts and appears likely to be an ongoing issue for a period of time.”

Nevertheless, the Judge confirmed that the FCFCA does have broad powers to make Orders that children be vaccinated, with or without the consent of the parties.

The Judge found that it would not be appropriate to give any weight to either parents’ arguments, as set out in their Affidavits, as neither of them had the training, study, experience, or specialized knowledge to make them experts in any aspect of medicine or public health.

Rather, the Judge’s ruling swung almost entirely on an Expert Affidavit filed by the Mother in support of her arguments, sworn by a ‘Dr E’, who holds a PhD qualification in Public Health and works in the field of public health research.

Dr E’s Affidavit presented a simple table of the comparison of risks associated with COVID-19 infection verses vaccination, from which the Judge concluded that the risks of not vaccinating children against COVID-19 infection “are not trivial” and include “risks of death, of long-term health impacts, of the requirement for hospitalisation including in intensive care, and a risk of multisystem inflammatory syndrome, which do not exist to any significant degree in vaccinated children”.

The Father, on the other hand, did not file any expert evidence about the potential kinds of adverse long-term side-effects he sought to argue might result out of the Pfizer paediatric vaccine. Nor did the Father object to the admission of Dr E’s evidence or seek to cross examine her at the Court hearing.

The Judge went on to say that whilst the father’s fears could be understood, in that the Pfizer COVID-19 vaccination for children is comparatively new and there has not been a history of decades of use that exists for all other childhood vaccinations, there was also no “risk free option” for the child.

It begs the question then, that if the Father was represented by a lawyer specializing in the field of Family Law, who knew to present expert evidence in his favor, would the Judge’s decision have been different?

If it becomes necessary for you to go to Court with your former partner regarding your children, don’t leave it to chance, contact a Family Law Specialist at Merridy Elphick Lawyers.