With Covid vaccinations now available for everyone 5 and over, some parents are butting heads over whether to get the children vaccinated.
It is one thing for you to decide, as an adult, that you’re up for the jab. After all, you’re the boss of you. But where a child has two bosses (legally referred to as guardians), who makes the final call if you disagree on getting the children vaccinated?
The Care of Children Act 2004 (COCA) outlines the duties, powers, rights and responsibilities of a guardian. Those responsibilities include the joint determination of important matters that affect a child. Medical decisions of a non-routine nature fall within this scope, so what that means, in practical terms, is that both guardians need to jointly agree on whether or not their children will be vaccinated.
If they can’t, then they can make an application to the court under Section 46R of COCA asking the court to decide. To jab or not to jab — that is the question.
Recent case law has been pretty clear on which direction New Zealand courts are taking on this issue.
In the 2020 High Court case of GF v Chief Executive of Oranga Tamariki the court directed that a 4-year-old girl was to receive the standard New Zealand childhood vaccinations, against the wishes of her father.
The father opposed vaccination, claiming that he’d been unable to get sufficient information from the Ministry of Health about immunisation and so had not been able to undertake the extensive research which he otherwise would have done. He objected to his daughter being put into what he described as a "forced vaccination programme".
His evidence was that he himself was not vaccinated as a child, and he believed that the human body’s natural immunity would adequately safeguard against disease. He was also concerned about the contents of various vaccinations and the potential for a child to suffer side-effects.
The mother took no active part in the proceedings, but she consented to her daughter’s vaccination, and was worried about her daughter associating with other children if she wasn’t immunised.
In any case that comes before the New Zealand courts under COCA, the court’s paramount consideration must be the welfare and best interests of the child.
In this case, the court noted that the immunisation schedule prescribed by the Ministry of Health should not simply be applied indiscriminately to all children; if there is medical evidence to suggest that vaccination may not be appropriate for a particular child, then the court must consider that, however, there was no such evidence before the court in this case.
Particularly pertinent to the current Covid climate, the court in the GF case took into account that if the child was not immunised, they might be prevented from attending school, something that the court stated would not be in their welfare and best interests.
In an earlier 2019 case, Lawson v Pugh, there was a similar outcome. In that case both parties presented their own medical evidence on the pros and cons of vaccines. The judge acknowledged that there is no blanket law in New Zealand which states all children must be vaccinated, but emphasised that the court’s focus in determining the application was on the welfare and best interests of the child.
The judge directed an independent medical report from a specialist immunologist to examine the risks and benefits for the specific child, subsequently ordering on the basis of that report that the child was to be vaccinated.
Most recently, a High Court judgement earlier this month has ruled against a bid by a group of parents to temporarily halt the Covid-19 vaccine rollout for children. Reinforcing the general approach taken in earlier cases, Justice Rebecca Ellis referenced a large number of repercussions that would arise from halting the rollout as outlined by Dr Ashley Bloomfield, including denying those families who wish to have their children vaccinated the chance to do so, disrupting the lives of children who have already received their first dose, and citing flow-on disruption to the everyday lives of children.
While each case will be decided on its own facts, case law to date is providing a clear steer that unless a child has individual medical or other concerns which make it inappropriate for them to be vaccinated in accordance with the Ministry of Health guidelines, then it’s likely that the court will order that child to be immunised.
- Charles Hantler is a solicitor with Dunedin law firm McMillan & Co.
