FACTS
In the context of an undetermined custody dispute, Child A, who was 15 years old, wished to be fully immunised against COVID-19. She received her first COVID-19 vaccine in November 2021 and wanted to proceed with the second and third doses in the usual course. Child A’s parents did not agree on whether Child A should be fully immunised against COVID -19. Mr Clay (Father) sought that he be permitted to enable Child A to receive her full course of immunisation. On the other hand, Ms Dallas (Mother) did not support Child A being fully vaccinated, firstly on the basis that Child A has pre-existing medical conditions, including a heart murmur, which meant (it was argued) that she was exempt from being required to have the vaccine, and secondly because the Mother was skeptical about the safety and efficacy of COVID-19 vaccines. The Father subsequently produced evidence confirming that a murmur was not listed as a reason for a COVID-19 vaccine exemption, based on the current exemption criteria set by ATAGI.
The basis of the application was Part 5 of the Family Court Act 1997 (WA). The Court had the power to make an order relating to Child A that she be vaccinated. In considering whether to make this order, the best interests of the child were paramount (this was in the context that the presumption of equal shared parental responsibility was not applicable due to the volatile parental situation).
REASONING
Child A stated the reasons she wanted to have the vaccine was that: firstly, she wanted to be in the community; secondly, the vaccination would help to not spread the virus; thirdly, having the vaccination would allow her to keep her employment at fast food restaurants; fourthly, having the vaccination would prevent her from becoming really sick if she did contract the virus; fifthly, everyone at school was having the vaccine, and she did not want to be singled out or different from her peers; sixthly, it would enable her to go on holidays; and finally, she would be able to keep living her life.
Child A understood the possible disadvantages of being vaccinated were relating to heart issues and potential blood clots. Whilst acknowledging the negatives, she considered that they were outweighed by the benefits to her in having the vaccine. The Family Consultant opined that Child A clearly articulated the advantage and disadvantages of being vaccinated and showed maturity commensurate with her chronological age.
The expert evidence indicated that if Child A’s heart murmur pre-dated her first Pfizer vaccine and there was no acute symptomology following her first dose, then Child A was highly likely not to be at any significant increased risk of cardiac issues with the second vaccine.
The Court noted that, while it is not always possible, it is preferable for the Court to have credible expert evidence about the disease, the vaccine and the child, or children, in question and that the Court should not rely on information provided by peak scientific organisations unless that information is properly before the Court, for example, through an expert witness.
Child A’s views were shaped by her own observations and inquiries, together with information provided to her [by her] school and by her treating GP. Having regard to Child A’s age, her stage of development and the level of maturity she had demonstrated in reaching the view that she wished to be full vaccinated against COVID-19, the Court was satisfied that Child A’s view should be given significant weight in the determination.
THE OUTCOME
It was Child A’s best interest and reasonably practicable to make an order that the father have permission to authorise Child A being administered the second and third doses of the Pfizer or Moderna COVID-19 vaccines, subject to cardiac review.
IMPLICATIONS
The Court’s comments in relation to what expert evidence was admissible in these proceedings focused on the provision of actual expert witnesses, rather than publicly available information from peak scientific bodies in relation to vaccination.
The Court was guided by the child’s own decisions, reasoning capacity and insight in this matter, when deciding whether the vaccination was in the child’s best interests. However, the Court drew the line at performing a Gillick competence analysis. Instead, the Family Court machinery was used to allow the Father to authorise vaccination, subject to further medical review.
The Gillick competence model provides that a child under 18 years of age can consent to medical treatment when the child has sufficient intelligence and maturity to understand the nature and consequences of the particular medical treatment: Secretary, Dept of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218.
On its face, the Gillick mechanism provides children who have the requisite intelligence and insight levels, with the opportunity to make treatment decisions on their own behalf. Here, the evidence was that Child A was articulate about her concerns relating to the vaccine and the reasons why she wanted to have it. She was mature in reaching the conclusion that COVID-19 vaccination was something she wanted. She had independently considered different sources of information about the advantages and disadvantage of getting the vaccine and had arrived at her own conclusion. She understood that the evidence supported that the vaccine prevented individuals from becoming very ill, but not necessarily from being infected with COVID-19.
The fact that the Court in this case did not employ Gillick analysis is curious. The fine line between parental and court oversight of children’s decision-making and complete child-centred autonomy has been starkly drawn in this context of COVID-19 vaccination.
To read the full decision in Clay v Dallas [2022] FCWA 18 click here
