This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Immunisation Of Children In Parenting Matters


Vaccination in childhood has greatly reduced the incidence of infectious disease and death from diseases such as whooping cough, polio, measles and mumps. In disputes over child immunisation between separated parents, generally the result will be immunisation of the child according to national standards unless there is clear medical evidence this is not in the child’s best interests.

Legal basis for decisions

Part VII of the Family Law Act 1975 is relevant to immunisation disputes. An immunisation decision falls under the ambit of “parental responsibility” and is considered a “major long-term issue”. The paramount consideration is what is in the best interests of the child.

If a parenting order for shared parental responsibility is in effect, a decision to vaccinate a child requires consultation between the parents, and the parents would need to make a genuine effort to come to a decision.

If there is no parenting order, each parent has parental responsibility and has no legal obligation to consult the other about immunisation.

Evidence

Vaccinations are administered to more than 90% of Australian children, and an overwhelming majority of medical practitioners support immunisation. Hence, courts usually dispose of evidence that does not support traditional mainstream medicine, which is backed universally by rigorous science.

Cases

Case law shows objections to immunisations tend to be for three main reasons: opposition to all forms of immunisation due to various beliefs, concerns about adverse reactions, or a preference for homeopathic alternatives.

Most cases result in immunisation of children, via the courts making orders that the pro-immunisation parent has sole parental responsibility for all major long-term issues, for all medical matters or immunisation only; or that one parent arrange a child’s vaccination.

Kingsford & Kingsford [2012]

The parties were negotiating a parenting order before the court and an order had not yet been made. The court stated the mother had chosen (widely discredited) homeopathic immunisation for the child, which the father had not opposed. The court noted that that the father had: “authorised his [new] wife to take the child to receive traditional vaccinations without the consent of her mother. The father’s position was that he had hoped to continue to secretively vaccinate the child throughout her childhood and had hoped her mother would never find out. The father said that he had believed that the mother would become very upset if she discovered that the child had been traditionally immunised and so he had decided that it would be non-productive for the mother to be told.

The court disapproved of the father’s actions but ordered the child should continue to be vaccinated in accordance with a schedule of catch-up vaccines.

Howell & Howell [2012]

A father was strongly opposed to vaccination because it was “contrary to all his strongly held beliefs including his acceptance of Religion T, vegetarianism and acceptance of traditional Chinese medicines and distrust of modern medicine”. The child had received homeopathic vaccination before the parents separated, though neither party supplied medical evidence about immunisation. The court found it was in the child’s best interest for the mother to have sole parental responsibility in relation to the child’s health. It made no specific order for vaccination but pointed out the decision to vaccinate the child now rested with the mother who had recently  changed her position to support conventional medicine.

Landis & Landis [2013]

A father who opposed vaccination on safety grounds was awarded sole parental responsibility for the child. However, the court ruled it was in the child’s best interests for them to be vaccinated, and entrusted the mother with the task of organising this.

Duke-Randall & Randall [2014]

The father stated that “during the marriage he had agreed with the mother’s anti-vaccination view for the sake of peace in the household”. After separation, he became more determined to vaccinate the children when his children were refused enrolment in holiday activities, when their school asked that he complete a conscientious objection form (and he was not a conscientious objector), and due to the health risks of overseas travel for his children without vaccination.

Arranzio & Moss [2015]

A mother had a “conscientious objection to vaccination on the basis of her research and her comparison of risk”. She relied on affidavit evidence of a doctor whose specialisation was not stated, and her own observations of health issues encountered by her cat after it was vaccinated.  The father relied on the evidence of a consultant physician in allergic diseases who specialised in allergy and immunology. The physician roundly rejected evidence from the mother’s doctor, describing his assertions as “bunkum” and “nonsense”. The court showed a preference for medically accepted evidence and found immunisation to be in the child’s best interest.

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