COVID-19 vaccination of children: What if one parent doesn’t agree?

COVID-19 vaccination of children as a guardianship issue
On Monday, 17 January 2022, the New Zealand Government announced that tamariki and children aged five years or older are now eligible to receive two doses of the Pfizer vaccine for COVID-19 for free.

However, there is no legal or regulatory requirement (vaccine mandate) for tamariki or children to be vaccinated. This means it is up to a child’s legal guardians (in most cases – their parents) to decide if they want their child to be vaccinated. Such a decision may be straightforward in many households – but what if one parent doesn’t agree?

Guardianship
The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child.

An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. An important matter affecting the child includes, amongst other matters, medical treatment which is not routine in nature. Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement. Vaccination has been held by the Courts to be non-routine medical care and is therefore a guardianship decision. This means that one parent/guardian cannot lawfully make a decision on their own as to whether their child is to be vaccinated without consulting with the other parent.

Guardianship responsibilities are a separate matter to care arrangements for the child. A parent/guardian who has day-to-day care does not have a greater say on guardianship matters than any other parent/guardian of that child, both or all guardians have an equal say.

Children’s views
COCA recognises that children’s views about matters that concern them must be heard and taken into account. A child’s welfare and best interests must be the first and paramount consideration in decisions concerning the child and a child’s safety must be protected. The older the child is, generally the more weight that should be attached to their views – both in and out of court.

Consent to medical treatment
The New Zealand Bill of Rights Act 1990 (“NZBORA”) gives everyone the right to refuse medical treatment, including children, so long as they are competent and fully understand their decision. COCA also provides that a child over the age of 16 can give or refuse consent to medical treatment.

This doesn’t mean that children under 16 years of age cannot consent to medical treatment. The test is whether the particular child has sufficient maturity and intelligence to understand the nature and implications of the treatment that they are consenting to.

For a child to consent to vaccination in New Zealand, a health professional must be satisfied that the child understands why the vaccination is necessary and the reasons for it. The health professional will discuss the vaccine and answer any questions that the child and their guardian may have. They must also be satisfied that the child understands the risks, benefits and outcomes involved.

A recent decision in Long v Steine [2022] NZFC 251 highlights that if a child has sufficient maturity and intelligence, they may be deemed to have capacity to consent to, or refuse, medical treatment themselves. The child in this case was aged 12 and was opposed to receiving the COVID-19 vaccination. The Family Court declined to make an order that the child be vaccinated, having regard to his age, maturity and his rights under the NZBORA. The court will generally only override the views of children who are old enough to display this level of understanding in serious, usually life threatening, situations.

With regards to COVID-19, and vaccinations more generally, the Courts have generally found in favour of vaccination in accordance with Ministry of Health guidelines, where there was no medical evidence that suggested that the child was at risk of the vaccine. A strong consideration is that contracting COVID-19 poses an immediate risk to a child’s physical safety, so steps should be taken towards limiting that risk wherever possible.

However, there is no blanket policy applied by the Court to always find in favour of vaccination. The particular circumstances of the child in question and what decision would be in their welfare and best interests are always the Court’s focus, creating an individualistic approach to vaccination decisions.

Guardianship disputes
If guardians cannot agree between themselves whether their child should receive the COVID-19 vaccination, there are options available to assist. These options include:

• Mediation: Family Dispute Resolution services offer mediation to assist in resolving guardianship disputes New Zealand wide. An independent third party will aid the guardians to reach agreement. This option is likely to be especially helpful in cases where one party is vaccine hesitant;
• Engage a lawyer: Individual circumstances vary, so case-specific legal advice may help parties to find resolution without needing the Family Court; and
• Family Court: An application to resolve a dispute between guardians can be filed in the Family Court pursuant to s 46R COCA. In appropriate circumstances, urgency can be sought. A judge will then make the decision at a hearing as to whether the child should be vaccinated.

Ultimately, the most timely and cost effective option will always be negotiating these matters with the other parent or guardian with a view to reaching agreement, wherever possible.

Review of refusal to give consent
There is also a process available to children who wish to seek a review of their parent or guardian’s decision to give or withhold consent. A child 16 years or older may apply to the Family Court for a review of the decision and seek an order that allows for vaccination for example. This ability relates to any important matter such as:

• The child’s name (and any changes to it);
• The child’s place of residence if it affects the child’s relationship with any parent or guardian;
• Other medical treatment of the child which is considered not routine in nature;
• Where and how the child is to be educated; and
• The child’s culture, language, and religious denomination and practice.

This is consistent with a child’s transition from being under the guardianship of their parent or guardian and being encouraged to make their own decisions and gain independence as they get older.

Therefore, a child who is between 16 and 18 years of age and wants to be vaccinated, but their parents or guardian will not consent, may apply to the Family Court to have a litigation guardian appointed to pursue a review of refusal to give consent. Alternatively, if the court believes that the child is capable of making their own decisions, the child may represent themselves.

While the likelihood of a child needing to take this route to ensure they get vaccinated may be low, it is crucial that children 16 years old and over understand the importance of actively participating in decisions concerning them (depending on their level of maturity and understanding).

Conclusion
It is natural to have concerns about the safety of a vaccination, particularly in an era of widespread misinformation. It is important that everyone can access reliable information about the vaccine in order to make the best decision for their own health, as well as their whānau, family and communities. In many situations, engaging in wānanga, an open discussion with others about experiences, questions, fears and reservations, with a level of curiosity can resolve differences in views.

Regardless, it is important to advise other parents or guardians of any scheduled vaccination and also once such vaccination has taken place. Parents/guardians should not act unilaterally in making decisions about vaccination for their children and must consult with the other parent/guardian(s).

If you find yourself facing the difficult circumstances described above, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution of the matter.

The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453.

References
Vaccination for children and young people | Unite against COVID-19 (covid19.govt.nz)
COVID-19 vaccine and children: Information for parents and caregivers | Ministry of Health NZ