Court orders vaccination of children against parents’ wishes

The Supreme Court of Victoria has recently affirmed the decision of a Children’s Court Magistrate to authorise the vaccination of young children while they are in the temporary care of the Department of Health and Human Services under an Interim Accommodation Order (IAO) contrary to the wishes of both parents.[1]

This case was surrounded by controversy as Victoria Legal Aid, using taxpayer’s funds, decided to run the appeal against the decision of the Children’s Court Magistrate. Critics strongly objected as they feared that a successful appeal could endanger the lives of children, and would prevent children in state care from attending childcare and kindergarten due to Victoria’s ‘No Jab No Play’ laws. It was feared that a successful appeal would set a dangerous precedent for every child in state care.

Although on first glance this case appeared to be about opposing vaccinations, an important public health measure, in reality, it was about much more than that.

This case was run as a test of parental rights for children in state care, and more specifically, a test of the nature and scope of the Court’s powers when making orders that have significant long term consequences for children who are only in the temporary, interim care of the state.

Osborn JA upheld the decision of the Children’s Court on the bases that:

  • The Court is given a wide discretion when deciding what conditions to impose under an IAO.
  • The Court’s paramount consideration in these cases is to act in the best interest of the child, which necessitates the Court to protect the child from harm.
  • The interim nature of the order by itself does not preclude the Magistrate from imposing a condition that will have significant long term consequences for the child.
  • The condition to vaccinate a child under state care relates directly to the circumstances of the accommodation of the child while in state care and is a valid condition.

This case clarifies that the Court is authorised to exercise a wide discretion when making orders even if the child is only in temporary state care, and in doing so, the Court is required to give the best interest of the child primacy over other considerations, including the wishes of the parent.

However, this does not mean that as soon as the child is in state care, parents are stripped from their rights to make decisions about their children. The Court’s power to make orders that are contrary to the parent’s wishes is limited to what is necessary to secure the safety and well being of the child.

 

[1] ZD v Secretary to the Department of Health and Human Services & Anor [2017] VSC 806

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