Family Court Considers Immunisation
When is it necessary for parents to obtain a Court Order for medical treatment for their child? In May this year we reported on the then recent case of Re:Spencer. The case was another in a string of cases addressing the Court's intervention into what would otherwise be the realm of parental responsibility.
Section 67ZC of the Family Law Act is the relevant section, permitting the Court to make orders in respect of special medical procedures. It is necessary to consider the distinction between a 'medical procedure' and a 'special medical procedure' in order to determine when it is necessary for the Court's jurisdiction to be enacted.
The test to apply when considering whether Court authorisation for a particular medical procedure is required was set out in Re: Marion. Essentially Court authorisation is required where:
The proposed intervention is:
invasive, permanent and irreversible; and
not for the purpose of curing a malfunction or disease
Cases involving sterilisation of intellectually handicapped children and those involving hormone treatment, and ultimate surgery for children experiencing gender identity dysphoria are perhaps more easily understood to involve 'special medical procedures'. The 'special medical procedure' is regarded to be so invasive and irreversible that parents are required to obtain the Court's authorisation to proceed with the treatment proposed.
What about immunisation of a child? Clearly immunisation of a child can be distinguished from the cases referred to in the preceding paragraph. A parent does not need the Court's permission to immunise their child. Immunisation is not per se a 'special medical procedure'. However, the Court will become involved in immunisation debates where parents adopt conflicting positions in respect of whether or not to immunise their child. Those cases are very different to cases where parents jointly decide their child requires a 'special medical procedure'.
When parents find themselves in different camps on the immunisation issue and approach the Family Court for a determination, just how does the Family Court proceed? Since 2011 the Family Court has become increasingly involved in the debate surrounding immunisation of children. At the core of the Court's consideration is the question "what is in the child's best interest?". In each of the cases Redden & Mains [2010] FMCAfam 1338, Kingsford and Kingsford [2012] FamCA 889 and the recent Duke-Randall & Randall [2014] FamCA 126 the Court has determined it was in the best interest of the child/children to be immunised.
