Vaccine roll-out and parental disputes: A recipe for disaster?

By Jerome Doraisamy|25 February 2021
Vaccine roll-out and parental disputes

With Australia’s roll-out of the COVID-19 vaccination now underway, family lawyers may have to consider whether there will be a spike in disputes over the welfare and best interests of children.

Will parental disputes increase?

Separated parents, Macpherson Kelley special counsel Shikha Luddu (pictured, left) told Lawyers Weekly, are often in conflict about the care, welfare and development of their offspring.

Whether or not to vaccinate a child, she said, “has been a historical debate”, which commonly arises when parents cannot agree on how best to raise their children.

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“Despite Australia being in the fortunate position to carefully consider the science-based evidence and the COVID-19 vaccine options, some members of society including separated parents are vehemently opposed to the vaccines being rolled-out, particularly in a ‘fast-tracked’ manner,” she explained.

“As seen at demonstrations all around Australia, many parents passionately hold very strong views on whether, or not, their children should be vaccinated.”

Her firm is already dealing, she noted, with cases whereby one parent is eager to see their child vaccinated for COVID-19 and the other parent is opposed.

The issue is currently hypothetical, given that the vaccines are not yet available or recommended for children, but “disputes will manifest once it is known whether children will be recommended to receive the COVID-19 vaccine”, she predicted.

“It is very unlikely that the vaccination will be mandatory. If children are the last group in line to be able to receive the vaccine, whether it is recommended for all children will not be known until later in this year. The challenges then will be in encouraging parents to make decisions in the best interests of their child that will protect them from the risk of harm,” she said.

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It is inevitable, Ms Luddu argued, that there will be parents that cannot agree on whether to vaccinate or not.

When asked if she agrees there could be a spike in parental disputes over vaccinations, Madison Marcus special counsel Alicia Huppatz said, “Perhaps”.

“On one hand, if you believe the ‘science’ that tells us children aren’t as susceptible to the virus as the rest of the population, then it may not be an issue for those parents. On the other hand, particularly in cases where the parties are spoiling for a fight, then yes – it may become a problem,” she said.

However, Mills Oakley partner Rachael Murray – who was a finalist in the 2020 Partner of the Year Awards in the Family Law category – said she isn’t expecting a rise in disputes or parties making applications for parenting orders only with respect to the vaccine roll-out.

“While we have seen a 200 per cent increase in applications filed in the Family Court and Federal Circuit Court since the onset of the pandemic, many of these applications related to existing parenting orders not being complied with, or the logistics of children moving between the homes of their parents,” she detailed.

“Historically, parents have made applications to the Court about immunisation where they cannot agree with the other parent about whether their child should be immunised. In a society that generally favours immunisation of children, parents must convince a Court that it is in the best interests of their child having regard to their particular circumstances not to be immunised.”

While there have been examples of children contracting COVID-19 in the past 12 months, Ms Murray continued, “symptoms are generally understood to be milder in children than in adults”, and they are less likely to develop a severe form of the illness.

“While the vaccine is being rolled out worldwide, long term effects of the vaccine cannot be determined. Some would argue that the risk of harm from infection of COVID-19 would not outweigh the risks associated with a child receiving a new (and only recently tested) vaccine. It will be interesting to see what approach the Court takes in assessing the risks of immunisation versus the risk to a child of contracting COVID-19,” she mused.

“I would expect that the Court may be more readily persuaded to make an order that a child not receive the COVID vaccine than other immunisations in accordance with the National Immunisation Program Schedule.”

How family lawyers can navigate such disputes

This said, it will be wise, Ms Luddu posited, for practitioners in this space to stay up to date with government recommendations and have regard for previous case law in providing clear advice to clients with respect to the new vaccine.

“Cases where the Family Law Courts have not made Orders for a vaccination involve a significant body of medical evidence to substantiate the negative impacts of the specific vaccination on the specific child,” she said.

“Ultimately, the Judge will make his or her determination following a review of the particular facts and circumstances unique to each individual case.”

Proactively, Ms Murray said, lawyers and parties should be “actively engaging” from an early stage to explore all of the issues and make a child-focused decision regarding vaccination.

Practically, she said, this will require gathering information supportive of the position contended for which is likely to assist a decision-maker at an early stage is best practice.

“Like all emerging areas, it will become easier to provide advice to clients about their prospects of success in relation to a proposed application once the Court provides guidance by issuing judgments on this point. The established law regarding these matters should guide practitioners in the meantime,” she explained.

Reaching amicable agreements during such exploratory discussions, Ms Luddu insisted, will be of paramount importance.

“Ultimately, an application to the Court should be the last resort,” she said.

Ms Huppatz suggested offering multidisciplinary seminars covering both the legal, medical and ethical aspects of the vaccine and providing a step-by-step approach that the clients can utilise themselves in the event a dispute arises: “Knowledge is power”, she reflected.

Otherwise, she suggested a four-step process for lawyers to follow: firstly, recommend that the child undergo a physical examination; secondly, recommend the parties jointly attend upon their child’s medical treaters for their expert advice; thirdly, recommend collaborative practice if the parties are still in dispute; and finally, fall back to litigation.

No matter what avenue is followed, Ms Huppatz added, parents will have to use common sense.

“The parents, in conjunction with the child’s treating medical specialists, will know the child’s medical history and, in particular, whether the child has had any adverse reactions to vaccines in the past – so it’s really important that parents collaborate with their child’s treating doctors and rely on their expert medical advice. Do not leave it up to the Court to decide,” she said.

Vaccine roll-out and parental disputes: A recipe for disaster?
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