As evidenced in the media, and all around us, the vaccination of children and adults against Covid 19 is a hot topic and one met with fierce debate from both sides. The refusal of some parents/caregivers to be vaccinated and the vaccination of children is the subject of many disputes between parents and caregivers around the country and is increasingly making its' way in to the Family Court.
Vaccination of children
From 17 January 2022 children aged 5-11 years old became eligible to be vaccinated against Covid 19. There is no legal or regulatory requirement for children to receive this vaccine. Children and young people aged 12 and over have the right to give their own consent to receive the vaccine. For children under the age of 12 a parent/caregiver must give their consent.
The Care of Children Act 2004 (the Act) makes it clear that vaccination is a guardianship decision. The Act sets outlines the duties, powers, rights and responsibilities of a guardian, including the joint determination of important matters that affect a child. Non-routine medical decisions for a child are one of the important matters to be determined by a guardian in consultation with any other guardians of the child.
If parents cannot agree on guardianship decisions for a child, they may seek intervention and assistance from the Family Court. The Act requires the court to consider, as a paramount consideration, the welfare and best interests of a child. The court determines disputes such as these on a case by case basis, however recent case law suggests that Ministry of Health guidelines, with respect to childhood immunisations, are likely to be followed unless there are good reasons not to. Those reasons may include a particular child's medical history. A recent decision of the Family Court (January 2022) did however go against vaccination for Covid-19 for a 12-year-old boy. It was held that because the child had very strong views against being vaccinated for Covid-19 and clearly understood the consequences of his decision, the Judge was not going to compel the child to be vaccinated against his wishes.
Vaccination of adults
Like children, there is no mandatory requirement by the government for adults to be vaccinated against Covid-19, although some restrictions may apply to non-vaccinated adults. For many parents/caregivers this is a cause of concern when unvaccinated adults are having contact or caring for children.
The courts have no power to direct that adults, having contact with children, must be vaccinated. Judges do, however, have an ability to construct and make Parenting Orders on terms they consider best meet the children's best interests and welfare and to protect a child's safety. There have been two recent cases, in November and December 2021, where a Judge has made a Parenting Order requiring a non-vaccinated parent to provide a negative Covid-19 test to the other parent within 72 hours of the start of each contact visit. What is not yet clear is how the courts will deal with a parent who is unvaccinated and who has the day-to-day care of a child.
As with cases involving a dispute about the vaccination of children, each case will inevitably turn on its own individual facts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
