Vaccinations – Who decides whether your children are to be vaccinated or not?

Not that my views are in way relevant to this issue, but I am pro-vaccination. I am definitely not militant about the issue though. I had measles as a kid in the late 1960s and in those days kids very nearly died from not only measles but other like contagions; a little less than a decade before that Polio and TB were common killers among us. I have certainly read some very interesting and persuasive articles recently that support both sides of the dispute; but, this article is not about the rights and wrongs of immunisation but about who makes the decision to vaccinate or not to vaccinate when you and your partner cannot agree on this issue after separation? When a couple separates, who gets to decide if the children are to be immunised or not? It would seem that everyone has an opinion on this hot topic and it can get quite heated between the ‘anti-vaxxers’ and the ‘pro-vaxxers’, with neither of them prepared to give any ground.

Aside from the obvious wider dispute regarding the rights and wrongs of vaccination, how do we effectively resolve this impasse between parents over whether to vaccinate or not when it comes to separating parents who each hold an opposing view?
The following cases can provide some guidance to separating parents who might find themselves involved in court proceedings, or soon to be, because they disagree over the issue of immunisation. I hope this article is helpful to assist parents to know how the court might deal with this issue in the hope that you and your partner can find some middle ground before running off to file court proceedings.

Kingsford & Kingsford [2012] FamCA 889

The issue for a determination in this case was whether an 8 year old child should be immunised according to homeopathic principles or conventional immunisation. The parents had separated and the child lived with her mother and spent time with her father alternate weekends during school term, and half of all of the school holidays.

The mother applied to the Court for orders that the child continue to be homoeopathically immunised and sought injunctive relief restraining the father from immunising the child in the future. The mother’s application was prompted by the step parent having the child immunised in the conventional way while the child was in the father’s household spending time with her father.

In this case the court was faced with competing expert opinions. The father’s expert was a doctor with a Bachelor of Medicine and Bachelor of Surgery from Melbourne University, who was also a Fellow of the Royal Australian College of Physicians. The mother’s expert was not a medical doctor but had an Honours degree in Economics and had a prior career in financial services before he later became a homeopathic practitioner later graduating from a PhD program to research homeoprophylaxis.

After hearing the scientific and medical evidence presented by the experts on behalf of both the mother and the father the Court found that “the efficacy of homoeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated”. While both forms of immunisation carry risks, the risks of both forms of immunisation are relatively low. In the circumstances, the Court found that the risk of harm of a traditional vaccination program was not so great as to outweigh the risk of infection. The Court ordered that the child be conventionally immunised. In this case, it was interesting that the Court found that while both forms of vaccination involved risks both were relatively low. Its decision was made in favour of conventional vaccination because its risks did not outweigh the risk of infection.

Duke-Randall & Randall [2014] FamCA 126

This decision involved two children, neither of whom had been vaccinated before despite both of the children having suffered whooping cough in the past. The mother held a fairly entrenched anti-vaccination stance and the father stated that he only agreed with the mother’s anti-vaccination stance while they were in a relationship just to avoid any unpleasantness in the household. This is not uncommon in some households.

A Senior Consultant Physician in Immunology and Allergy was appointed to provide recommendations by the father, the mother and the Independent Children Lawyer. After seeing the children and conducting medical examinations, the expert found that the children were able to receive vaccinations in accordance with the recommended vaccination schedule.

In this case the father provided evidence to establish that the children had been restricted in their activities as a result of not being immunised – he had not been able to enrol the children in various school holiday activities, gyms, and did not feel that he was able to take the children on holidays overseas unless they were vaccinated.

The Family Court decided that the children in this case should be immunised because the mother had failed to present any evidence to the Court that the children would be adversely affected by being vaccinated. Once immunised, the Court recognised that the children would be able to participate in the various activities they were unable to be involved in while they were not immunised.

Conclusions

So what can we conclude from these case examples above?

The Family Court will determine the issue of immunisation by considering the particular circumstances of the child the subject of the proceedings before it. Each case will turn on its own facts in this regard.

While a parent’s belief is a factor to be considered by a Court, the Court is more likely to be moved to make its decision based on medical and scientific recommendations that are sympathetic to the child’s best interests as the paramount consideration and only in that context.

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