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Parents have the mutual goal of wanting the best for their child. Naturally, there are disagreements as to what "the best" means. A notably difficult decision has arisen in recent years for parents about whether or not their child is going to receive the Covid-19 vaccine. This is a guardianship issue in family law.
Facts about Covid-19 vaccines for children
Under the current Ministry of Health guidelines, children aged between 5 to 11 years can receive the paediatric Covid-19 vaccine. Children and adolescents from 12 years old onwards are to receive the adult Covid-19 vaccine.
The Covid-19 Vaccine Technical Advisory Group recommends that severely immunocompromised children should receive a third primary dose of the Covid-19 vaccine. Starship Hospital recommends a booster dose for children between 12 and 15 years who have medical conditions that heighten their risk of contracting severe Covid-19.
Joint decision-making and consent
As guardians, parents are jointly responsible for determining important matters affecting their child, even if they are not living with their child.
The Covid-19 vaccine is currently considered a non-routine medical treatment for legal purposes, which means that this decision must be made co-operatively between the parents and requires the consent of both parents if the child is younger than 16 years of age.
The Ministry of Health requires parents to either accompany their child to the appointments, or complete and sign the Covid-19 vaccination consent form to give to another responsible adult who will accompany them.
Welfare and best interests of the child
Any decision affecting a child must be made in the best interests and welfare of the particular child in their particular circumstances. This is the first and paramount consideration, and it requires an individualised assessment of each child's needs on a case-by-case basis.
Views of the child
Parents also need to give their child a reasonable opportunity to be a part of this discussion and to express their views, which must be taken into account. It is vital that the child gets to participate in the decision that ultimately affects them.
Some suggested topics for parents to talk with their child about include the purpose of a vaccination, reasons for and against getting the vaccine, the impact of this decision on the people in their lives, expectations during and after the vaccination, and any questions that they might have.
Teenagers aged 16 years and older can consent to, and refuse consent to, any medical treatment. In other words, they can make their own medical decisions as if they were adults. Doctors will not administer the Covid-19 vaccine against their wishes, nor will they provide the vaccine on the parents' wishes if the child does not consent. This is in recognition that everyone has the right to refuse to undergo any medical treatment.
The Family Court has tentatively deemed a 12-year-old child to be competent to give or refuse consent, although more development in case law is needed in this area.
Safety of the child
Protection of the child's safety is another relevant factor to consider. The Court has expanded on their view of child safety to include the protection of a child's health. This involves weighing up the risk of the child being vaccinated against the risk posed to the child if they are not vaccinated. It also includes an analysis of the particular illness that the child is to be vaccinated against.
Immunocompromised children
Decisions about vaccination can be particularly stressful for parents of immunocompromised children. Some parents want their child to be fully-vaccinated to protect them from the additional risk posed by their underlying medical condition; other parents believe that the side effects of the vaccination are too high a risk due to the child's vulnerabilities caused by their medical condition. Both stances are understandable and have equal merit.
It is recommended that parents discuss with their child's doctor about the benefits and risks of the Covid-19 vaccine for their child, the optimal timing of vaccination, and form a plan together through shared decision-making.
Culture, religion and vaccination
Some families have cultural or religious reasons for or against vaccination. The Courts have not yet examined this issue in relation to the Covid-19 vaccine specifically, and there is limited judicial guidance on guardianship disagreements about culture and religion in general.
The Courts seem to have adopted a neutral position on religion and taken a holistic approach, considering that all aspects of the child's welfare and best interests must be taken into account. This includes the child's physical, mental, and emotional wellbeing, and the development of the child's standards and expectations of behaviour within society. The Courts have recognised that all religious and cultural heritage factors have equal importance, and in doing so, discouraged excessive emphasis on any particular moral, religious, or material consideration.
It is expected that the Courts will be consistent with this approach when determining matters on culture, religion and vaccination.
The Court's current approach to Covid-19 vaccination for children
The Court's approach to the issue of vaccination has historically been guided by advice from the Ministry of Health, medical experts, and the child's own medical practitioner. So far, the Court has been favourable towards children receiving the Covid-19 vaccine, regarding it as in the children's best interests and welfare. The Court seeks to be well-informed and updated on medical guidelines and will respect and heed advice from medical experts, particularly where underlying health conditions are involved.
How we can help
We can help you negotiate and resolve your guardianship disputes to achieve the best outcome for you and your family. Our team is highly experienced and knowledgeable in a wide range of family law areas, and we are well-placed to assist you on matters both in and out of Court.
If you have any enquiries relating to this topic or article, or are in need of any family-related legal services, please contact:
Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)
Jackie Dale on (09) 306 6747 (jdale@mcveaghfleming.co.nz)
Rosanna Wu on (09) 306 6748) (rwu@mcveaghfleming.co.nz)
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Family Law & Relationship Property
Written by Rosanna Wu
© McVeagh Fleming 2022
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
