CS Law Associate recently wrote an article for the Horowhenua Chronicle on the COVID-19 Vaccination and Guardianship Disputes.
With the recent roll out in New Zealand of the paediatric dose of the Pfizer Covid-19 vaccination for children between the ages of 5 and 11, there is potential for disagreement between parents/guardians about whether to vaccinate their child/children.
The issue of whether to vaccinate is a guardianship decision which means that both of the child’s parents or guardians must be consulted and must reach an agreement. If they are unable to agree, this is where a parent/guardian may turn to the Family Court and ask a Judge to decide the issue.
The Court cannot make decisions that apply to all children, instead they must determine what is best for each child on a case by case basis. This will involve weighing up the risks that would be caused by the vaccination against the risk posed by the virus.
In assessing the level of risk involved if the child were to be vaccinated, the Court will consider whether there were any specific personal or health factors for the child which indicate that the Ministry of Health guidelines should not be followed.
Looking at recent cases in the Family Court where the issue of vaccination has been considered (in the context of the MMR vaccine and other childhood vaccinations recommended by the Ministry of Health), there have been some examples where expert evidence has been provided to the Court to support vaccination. However, there are other cases where no specialist medical evidence has been provided to the Court and the Court has relied on the fact that the Ministry of Health recommends a schedule of vaccinations for all New Zealanders “based upon a body of medical evidence” (Stone v Reader  NZFC 6130).
It is also likely to be highly relevant to the way that the Family Court approaches the Covid-19 vaccination that the High Court has received expert evidence on the risks of benefits of the Covid-19 vaccination in a judicial review context, and determined that the vaccinations are low risk and high benefit to individuals and society.
Another factor that may be taken into account in some cases are the views of the child. Whether a child’s views are taken into account will depend on their age and whether they are able to express an informed view about the issue of vaccination.
When it comes to older children, aged between 12 and 15 years old, they are able to give their own consent to receive the Pfizer vaccine in a community-based vaccination setting if a health care professional believes that they can give informed consent. The rules are different in a school setting where written consent is required from the young person’s parent/guardian.
So what is the likely outcome when the Court considers the issue? The cases that have gone before the Courts on the issue of vaccinations of children generally indicate that while the Court must make a decision on a case by case basis, unless the party opposing vaccination is able to provide robust evidence which indicates that the risk of vaccination outweighs the benefit, then the Court is likely to rule in favour of vaccination.
If this is an issue for your family and you are unable to agree, we recommend that you consider seeking legal advice from a lawyer who can help you navigate through the issue.