Immunisation and family law – how do you decide?

Some Australian parents have recently begun to question whether to immunise their
children, expressing concerns about possible side-effects risks associated with
childhood vaccinations. But what happens if parents are separated and can’t agree?
Background
Childhood vaccines, introduced in 1932, are said to have greatly reduced illness and
deaths from diseases such as whooping cough, polio, measles and mumps. However,
in recent years immunisation rates have fallen amid some parents’ fears about the
safety of vaccines, whether vaccines have been adequately tested and concerns about
vaccines’ links to conditions such as autism, sudden infant death syndrome and multiple
sclerosis.
Approximately 92% of Australian 5 year olds are fully immunised; however, in some
areas the figure is lower than that. Some diseases, whooping cough for example,
previously thought to be “extinct”, seem to again be on the rise.
The Australian government maintains a register of the vaccinations received by children
under 7 years of age. Parental eligibility for some family payments is now linked to
children’s immunisation status, and in some circumstances unimmunised children may
not remain at school or daycare if there is an outbreak of a particular disease.
Exemptions can be obtained if there are approved medical reasons why the child is not
immunised.
Who gets to decide?
It is hoped that parents would agree on whether or not to vaccinate their children,
perhaps after discussing any concerns with their family doctor. But what if they can’t
agree? Who gets to decide?
Equal parental responsibility
In the absence of a Court order, both parents, whether separated or not, have equal
parental responsibility for their children. In addition, except in unusual situations, the
Court normally orders that both separated parents have equal shared parental
responsibility.
What is equal shared parental responsibility?
Equal shared parental responsibility means that the parents both have the right to
consult with each other, hopefully agree on and then implement decisions about their
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children’s long-term care, welfare and development. Those long-term issues include
decisions such as a child’s name and religion, schooling and major health decisions.
Major health decisions are things like an operation, treating a broken bone, commencing
certain medication such as Ritalin, or arranging for a child to see a psychologist.
Whether or not to vaccinate a child probably also constitutes a major health decision.
In other words, where parents have equal shared parental responsibility, they share the
right to be consulted about and hopefully agree on whether or not to vaccinate their
children. Neither parent has the right to make that decision without consulting with and
obtaining the other parent’s consent.
What if we can’t agree?
For some parents, the immunisation debate can become emotionally charged, as they
may approach the decision from different lifestyle, wellness and health care
philosophies. One parent may also be concerned not to lose government benefits if the
children are not fully vaccinated.
In such circumstances, no matter how much the parents consult with one another, they
may never be able to reach agreement. In addition, the immunisation debate is quite
“black and white” – it would not be easy to reach a compromise or middle ground. The
parent who opposes vaccination is not likely to agree for the children to receive half their
vaccinations, for example; just as the other parent would probably equally strongly
believe that the children should get all, not half, their necessary jabs.
Can we go to Court?
If parents cannot agree about how to exercise their equal shared parental responsibility,
they may have to ask the Court to decide for them. Before going to Court, they must
first try to resolve their issue through mediation with a family dispute resolution
practitioner.
If the parents still can’t agree, going to Court and asking a Judge to decide may be the
only option. The Court generally prefers not to make these sorts of decisions for
parents, but if the parents really cannot reach an agreement, then a Judge would
ultimately impose his or her decision about whether or not the children should be
vaccinated.
Summary
Although childhood vaccines against a range of diseases have been in use for many
decades, in some parts of Australia today there is strenuous debate about the need for
and safety of immunisation programs. This debate could be a source of conflict for
separated parents.
In most situations, parents have equal shared parental responsibility, meaning that
parents share the right to consult with one another and hopefully agree on issues
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relating to their children’s long-term welfare, which would include decisions about
vaccinating their children. However, if they cannot agree, the Court can be asked to
decide for them.
To find out more about your rights regarding the immunisation of your children, call us
on 02 9191 9293 or email mail@rnlegal.org

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