To vax or not to vax

Parental disputes about the Covid-19 vaccination

As Covid-19 continues to pose a health risk to our society, some believe that the vaccine offers a way of protecting ourselves and our loved ones. Others fear the vaccine’s side effects or just don’t quite buy it. The internet and media have become rife with debate between pro-vaxxers, anti-vaxxers and the vaccine hesitant. Unsurprisingly, these ideological clashes arise not just with strangers on the internet, but often within our very own homes.

So, what happens if parents (or additional guardians) have different views on vaccinating their child?

A child over the age of 16 can give or refuse consent to medical treatment, including vaccination. A child who is under the age of 16 but is able to competently understand the effects and implications of getting the vaccine (or not) can also give or withhold consent. Parents and guardians should help guide a child through making an informed choice.

If a child is under 16 and is not competent to consent, the decision falls to their guardians. Guardians must consult and make decisions about their child jointly. Where guardians cannot reach agreement, the Family Court has jurisdiction to resolve disputes. While the Covid-19 vaccine is relatively new to our shores, parents disagreeing on whether or not to vaccinate their children is not a new issue for the Family Court.

The paramount consideration for the Court in these instances is the welfare and best interests of a child. This means that the same approach cannot be applied to every child and whanau. Instead, the Court must take into account the child’s particular circumstances. The Court will also consider the child’s views on the issue.

Past Family Court decisions have shown that the Court is likely to order a child be vaccinated where there is a lack of medical evidence to support the ‘anti-vax’ approach. Furthermore, the Ministry of Health’s clear direction and support of a vaccination programme has been relied on by the Court in the past to favour the vaccination of a child (if it is appropriate in all circumstances).

Vaccination may also cause contention within families where one parent chooses not to get vaccinated; particularly if there is an on-going dispute around childcare arrangements.

A key principle relating to the welfare and best interests of a child is that the safety of that child is protected. This begs the question of whether one parent refusing vaccination places their child’s safety at such a risk that their contact should be limited. Although this issue has not yet arisen before the New Zealand Courts, it has been raised overseas and we will likely see similar issues arise as we continue to navigate through the pandemic.

If you have further queries about guardianship decisions and disputes, the team at Schnauer and Co Lawyers are here to help.

Issue 125 November 2021