In the recent case of McGowan & Brennan [2022] FedCFamC2F 1082, the Court was tasked with determining whether a nine-year-old child should be vaccinated against COVID-19 in circumstances where the father wanted the child vaccinated but the mother did not.
The mother held concerns about the safety of the COVID-19 vaccine for children. The mother was not opposed to vaccinations, having previously facilitated the child’s vaccinations against a range of childhood diseases. The mother’s concerns centered around the limited clinical data to support a conclusion that the vaccine is sufficiently safe and effective for children. The mother’s position was that the risks of the vaccine were not justified at present when compared to the risks of the disease.
Conversely, the father was concerned about the child’s safety if not vaccinated against COVID-19. The mother communicated her concerns with the father. Despite this and without the mother’s knowledge, the father unilaterally arranged for the child to receive the first COVID-19 dose. The mother only learned of the father’s actions the following day when she was contacted by the school as the child was not feeling well from the vaccination.
The mother relied on an expert report that concluded “there is a statistically or virtually nil risk of serious COVID-19 in general affecting children aged 5 to 11 years – there seems to be little benefit to be gained by vaccinating these children. But there is a clear and significant risk of serious adverse effects including myocarditis, pericarditis and death in this age group following gene-based COVID-19 vaccination as well as other serious adverse effects.”
The father relied on recommendations of the Australia Technical Advisory Group on Immunisation (“ATAGI”) which concluded that “COVID-19 vaccines carry with them a risk of harm to the recipient. However, the information provided by these reputable Australian organisations indicates that, as a general proposition, the risks are significantly outweighed by the benefits. ATAGI believes that the benefits of vaccination warrant a recommendation for vaccination in this age group. Unvaccinated children will remain at greater risk of adverse outcomes related to the COVID-19 pandemic”. This position is consistent with the opinion of the State and Federal health authorities.
The Court considered the risks identified by each of the parents and determined that the risk to the child in not being vaccinated favoured neither party’s case.
The Court then considered the benefits in obtaining the COVID-19 vaccine. The evidence the mother relied on concluded there was no benefit in obtaining the vaccine, whereas ATAGI cites a number of benefits including wider social and/or indirect benefits. Some anticipated social/ indirect benefits the court referred to include:-
- The benefit of reducing the likelihood of school closures and disruptions to extra-curricular activities.
- Reduction in parental absenteeism and isolation of children and their families.
- Reduction in transmission of disease through children.
As a result of the anticipated social and/or indirect benefits, the Court held that it was in the child’s best interests to be vaccinated against COVID-19 as soon as reasonably practicable.
