Family Court confirms orders for child to be vaccinated

Key messages from the case

Where parents cannot agree about medical treatments in their child’s interests, the Family Court may make parenting orders. Parenting orders may affect how parents can provide consent regarding treatment, or they may provide consent on behalf of the child. A 2021 case confirmed that the Family Court does have power to order children be provided with healthcare treatment such as vaccinations.

Details of the decision

Children and consent

Ms C objected to her child Z receiving any vaccinations. Z’s father, Mr C, supported vaccination.  Z’s parents were no longer in a relationship but shared parental responsibility for Z who lived primarily with Ms C and spent time with Mr C.   

Ms C applied to the Family Court to prevent Z from being vaccinated. In these proceedings, Ms C consented to court orders that Z be vaccinated. The orders permitted both parents to attend vaccination consultations and required them both to remain calm and cooperative and to ensure they did not expose Z to conflict or distress. Z was aged 10 at the time of the court application.

Ms C subsequently lodged an appeal, claiming her consent had been obtained under duress, and seeking to overturn the Family Court orders. The appeal court found her applications was misconceived and that she had failed to establish any case of duress.

The court noted that even if Ms C had withdrawn her consent, this would not have changed the outcome. The orders made by the court were valid as the Family Court has jurisdiction to make parenting orders in the best interests of a child regardless of parental consent. 

Treatment without consent – battery claim

Ms C’s representative had sent a letter to Z’s doctor, alleging the doctor would be committing assault and battery if the vaccinations went ahead and that she did not consent.

The appeal court found this allegation was completely misconceived. The vaccination was authorised by the Family Court and therefore entirely lawful. Further, the court reminded Ms C that contacting the doctor in this way breached another order made by the court restraining her from communicating with any doctors Z attended for vaccinations. 

Outcome

The parenting orders continued to be valid and binding, despite Ms C withdrawing her consent.

Ms C was ordered to pay Mr C’s costs.

Key lessons

When you are aware parents are separated and/or are unsure who has the authority to provide consent for a child’s treatment, you should ask whether there are any parenting orders in place.   

If parenting orders exist, ask for a copy and keep it on file. You are entitled to rely on the instructions to authorise the treatments covered by the orders.  If parent/s say there are no parenting orders, document this response in the child’s medical record.

In complex cases where you are unsure about the approach to take, or where you hold concerns for the wellbeing of the child, contact Avant for assistance.

Different considerations may apply if a child is a mature minor and has sufficient capacity to make treatment decisions themselves. 

References and further reading

Avant factsheet – Children and consent

Avant factsheet – Children’s care and separated parents