By Ryan Attard, Law Clerk & Antony Kahn, Principal

The Court has the power to order that children be vaccinated, irrespective of parental consent.

In Covington & Covington , the Full Court of the Family Court of Australia (comprised of Strickland, Ryan & Aldridge JJ) confirmed that the Court has jurisdiction to order that a child be vaccinated, regardless of parental consent.

In Covington, the mother sought a stay of parenting orders, previously consented to by her, which provided among other things for the parties’ child to be vaccinated. The mother sought a stay of the relevant order until the High Court of Australia had determined her application pursuant to section 51(xxiiiA) of the Commonwealth of Australia Constitution Act 1900 (UK) (‘Commonwealth Constitution’). This provision of the Commonwealth Constitution prohibits the Commonwealth Government from requiring doctors or dentists to engage in or perform medical and dental services, known as “civil conscription”. The mother’s contention was that this provision of the Commonwealth Constitution enshrined a freedom to reject compulsory vaccinations.

The mother had originally consented to final parenting orders including an order for the child to receive vaccinations as recommended by the child’s paediatrician. The order was agreed to by the husband and supported by the Independent Children’s Lawyer based on the advice of the paediatrician. Soon after the orders were made, the mother withdrew her consent to the orders claiming she was under “duress, coercion and pressure” at the time she agreed to the orders. Ultimately, the mother confirmed her consent to the remaining parenting orders and limited her challenge to the vaccination order.

The Full Court did not consider there was any merit in the constitutional argument propounded by the mother. The mother’s related argument that the Victorian Public Health (No Jab, No Play) Act 2008 (Vic) (colloquially the No Jab No Play Policy) was invalid under the Commonwealth Constitution could not succeed as this was state legislation and not governed by the Commonwealth Constitution. There were additional issues with the way in which the mother had framed her application, including that she had neglected to challenge the order providing for the vaccination, meaning that the Full Court was unable to grant the relief sought by the mother in any event.

Importantly, the Full Court confirmed that the Court has jurisdiction to make orders providing for a child to be vaccinated (see also Mains & Redden [2011] FamCAFC 184). The Court can make such an order if it is determined to be in the child’s best interests, irrespective of parental consent. Accordingly, the mother’s withdrawal of her consent did not invalidate the vaccination order.

Covington is significant in the context of the recent expansion of the COVID-19 vaccine rollout in Australia to include children, which creates a potential new battleground for parents who are unable to agree whether their child should be vaccinated.

Covington & Covington [2021] FamCAFC 52

UPDATE: On 9 September 2021, the High Court of Australia dismissed the wife’s application for special leave to appeal the decision of the Family Court of Australia. This effectively brings an end to the matter, with the wife having exhausted all rights of appeal. While the rollout of the COVID-19 vaccine program is likely to result in more cases coming before the Courts, this decision stands as authority for the proposition that the Family Court may order inoculations where these are in the child’s best interests, irrespective of parental consent.