A dispute between parents about whether to get their 12-year-old son vaccinated against Covid-19 has ended up in court where a judge has ruled it’s up to the child to make the final decision.
The boy’s mother wanted him removed from his “anti-vax” father’s care until their son was fully vaccinated, despite the boy himself not wanting to have the jabs.
But a judge has this month ruled against his mother, saying the boy is within his rights to make up his own mind about vaccination.
The boy’s parents appeared before Family Court Judge Stephen Coyle in Whakatāne in late December, after the mother filed a claim seeking full custody until her son received his two Covid-19 vaccinations.
The claim requested that once the child had received the two jabs, existing custody arrangements between the mother and father would resume.
The boy’s mother also sought an order from the court that the parents were not to discuss anti-vaccination views around him, and any information about vaccination be provided to him from a medically-approved source.
According to Judge Coyle’s recently released judgment, Toni Brown, the lawyer acting for the child’s mother, submitted the boy would be “psychologically unsafe because he is being exposed to an anti-vaccination worldview” in his father’s care.
Speaking to Judge Coyle in chambers, the boy said he was unwilling to get vaccinated based on the information in front of him.
His reasons included not knowing what was in the vaccine and that he was told by another adult at his father’s home that the vaccine had been tested on aborted foetuses – a claim debunked by the Ministry of Health.
If taken to a vaccination clinic, the boy said he would advise any vaccinator he was not willing to receive the jab, meaning the vaccinator wouldn’t legally be able to administer the vaccine, in line with Ministry of Health policy.
According to Judge Coyle, the 12-year-old was “a good, sensible and intelligent young man” who had formed his own opinion about the vaccine, as was his right under the Bill of Rights Act.
He said the boy was also fully aware of the consequences of not being vaccinated, such as not being able to attend extracurricular activities or going away on a holiday.
Brown, the lawyer acting on behalf of the child’s mother, submitted the boy’s opinion had been formed on the basis of misinformation saying the “proximity to adults with stronger views against vaccination is likely to have swayed [the child’s] opinion”.
Brown submitted regardless of the boy’s view, there was an obligation for parents to consider the welfare of the child, even if that overrode his wishes.
Brown pointed to a case where the High Court overrode an HIV-positive 14-year-old’s decision to not receive treatment.
But the judge determined that with a Covid-19 child mortality rate of just 0.4 per cent as per Unicef figures, vaccination wasn’t as significant of a life or death consideration such was the case with various other medical treatments.
“A number of cases have made it clear that in relation to younger children where vaccination is recommended by the Ministry of Health guidelines (such as for polio, rubella and measles) that the courts will require young children to be vaccinated,” Judge Coyle said.
“But [this child] is of an age where his views need to be given weight, and this case can therefore be distinguished from those cases which consider a dispute between guardians in relation to the vaccination of much younger children.”
As for the mother’s application any discussion around anti-vaccination views be off-limits with the child, the judge determined such an order would be a “direct trampling” on the right to freedom of expression.
“What in effect [the mother] is asking the court to do is to ensure that the child is only exposed to one discourse and narrative in relation to the vaccine.
“That is the type of response that could be expected in a totalitarian or communist regime, but not in a free and democratic society.”
Judge Coyle dismissed the mother’s claim and reserved his decision on the order of costs.
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