Immunisation is a process which aims to protect individuals from illnesses caused by infection by vaccinating them from an early age. When parents separate or divorce many issues can come into contention, including whether or not to immunise your child/ren. A parent may be reluctant or unwilling to immunise their child because they fear side effects caused by a vaccine, prefer to treat any illnesses homoeopathically or hold various anti-vaccination beliefs. This begs the question “Can I be forced to immunise my child”
If you and your ex-partner have a parenting order for shared parental responsibility, then the decision to vaccinate your child/ren should be made together, after genuine consultation. If there is no parenting order in place and the decision to immunise your child/ren becomes a protracted issue, you may need to seek a parenting order from the Court.
Considerations of the Court
Case law shows that the Courts will usually order sole parental responsibility in relation to a child’s health to the parent who is pro-vaccination. This is due to the copious scientific evidence and overwhelming support of medical practitioners that back immunisation as best practice. The Court will typically reject evidence that is not grounded in modern medicine or science.
Additionally, under the Family Law Act, the Courts paramount consideration must be given to what is in the best interests of the child. Typically, vaccination will be considered the best interest of the child provided there is no medical evidence that suggests a child is at risk of any adverse reaction.
The following cases show how the Courts deal with the immunisation of children in parenting matters.
In this case, the Court was asked to make a decision as to whether a child should be immunised according to traditional practice or homeopathic practice. The Mother applied to the Court for an order that the child continue homeopathic immunisation and the Father and his agents be restrained from conventionally immunising the child. Both parties provided expert witness testimony to present scientific and medical evidence to the Court. The Father’s expert was a medical doctor whereas the Mother’s expert was not a medical doctor, having graduated from a PhD program to study homeoprophylaxis.
Ultimately the Court ruled “that the efficacy of homeopathic vaccines in preventing infectious diseases has not been adequately scientifically demonstrated” [at 116] and ordered the child be conventionally immunised.
In Howell, the issue of immunisation was disputed by the Father who held strong beliefs “of Religion T, vegetarianism and acceptance of traditional Chinese medicines and a distrust of modern medicine”. Before separation, both parties agreed to homoeopathically vaccinate their child however after separation the Mother had changed her position. The Court ordered that the Mother have sole parental responsibility in relation to the child’s health and although did not make any specific order to that effect, pointed out that the decision to vaccinate the child was now hers to make alone.
This case involved two children, neither of whom had been vaccinated despite suffering previous bouts of whooping cough. The Mother held anti-vaccination beliefs and throughout the marriage the Father had agreed with her position “for the sake of peace in the household”. After separation, the Father attempted to enrol the children in holiday activities but was refused due to the children not being vaccinated. The Father also intended to take them overseas but because they were not vaccinated it posed a number of health risks to the children.
The Court appointed an expert immunologist to provide evidence that immunisation was in the best interests of the children and that there would be no adverse risk to the children if they were vaccinated. The evidence was accepted and the Court ordered the children be vaccinated.
In this case the Court showed a clear preference for accepted medical and scientific evidence. The Mother held anti-vaccination beliefs and had a “conscientious objection to vaccination on the basis of her research and her comparison of risk”. The Mother relied on affidavit evidence provided by a doctor (whose specialisation was never stated) who alleged the child had underlying health issues that increased the risk of an adverse reaction to immunisation. The Father’s expert evidence was a consultant physician who specialised in allergy and immunology who absolutely rejected the evidence relied on by the Mother.
The Court stated that it preferred the evidence of the Father’s expert, finding vaccination to be in the best interest of the child.
So what does the case law tell us?
Overwhelmingly, the Court will decide in favour of immunisation as it is backed and supported, almost universally, by science and medicine. The case law shows that unless adverse risk can be proven through scientific or medical means, then vaccination is likely to be in the best interests of the child. Ultimately, the Court will consider whether to immunise based on the individual circumstances of the child and what it is in their best interests rather than the personal beliefs of the parents.
THE RAMSDEN FAMILY LAWYER TEAM
Obtaining advice from an experienced family lawyer is especially important in cases when questioning “Can I be forced to immunise my child?”.
Our team of experienced family law solicitors can assist you if you are experiencing problems with your parenting matters. If you require assistance with your parenting matters, we invite you to contact us on 1300 749 709 to discuss the options available to you. Our family law team at Ramsden Lawyers offer a free 30 minute consultation and we would love to be able to assist you.