With the Pfizer vaccine now available for anyone aged five and over, parents around the country are faced with the difficult decision about whether to vaccinate their tamariki. The decision is made more difficult when parents' views differ and the child has a voice in the decision, too. A spotlight has been shone on this very conundrum in a case recently before the Family Court (Long v Steine [2022] NZFC 251), where a mother sought an order for her twelve-year-old son to receive the two COVID-19 vaccinations. She also sought that the father and stepmother be prohibited from discussing anti-vaccination views around the boy and that any information provided to him regarding vaccination be "medically approved."

The twelve-year-old (referred to as "Charlie" in the judgment) expressed a clear desire not to be vaccinated and was able to articulate his reasoning. It was clear that Charlie's views had been influenced or informed by those of his father and stepmother together with information they had conveyed to him.

However, the Court refused to grant the orders sought by the mother. The Court determined that Charlie had sufficient intelligence and understanding to comprehend the decision not to be vaccinated and that the Court should give effect to his wishes. The Court also declined to restrict the information provided to Charlie, noting that it is important for a child to be exposed to a range of views, including those outside the "mainstream narrative."

This case provides a useful backdrop to consider guardianship rights and responsibilities and how they should be exercised.

Guardianship

Guardianship, as defined in the Care of Children Act 2004, covers all duties, powers, rights and responsibilities that a parent of a child has in relation to the upbringing of that child. A child is any person under the age of 16 years. This includes making decisions for your child regarding "important matters" affecting them and their wellbeing. These important matters include medical treatment, which covers the administration of vaccinations.

The father and mother of the child are almost always joint guardians of the child, and accordingly, have equal decision-making rights and must exercise their role together. This applies regardless of whether a parent has care of the child. The guardian status of a parent does not change upon separation, the role must continue to be exercised jointly unless a court order says otherwise. For example, if a child predominantly resides with parent A and has limited (or no) contact with parent B, parent B is still entitled to be consulted regarding guardianship issues and to make decisions jointly.

Generally speaking, guardianship is distinct from day-to-day care decisions. There is no obligation to consult on minor issues such as what to eat for dinner, or bedtime. This highlights the point that even if the child is in the day-to-day care of one parent, who may attend to all of the daily needs and issues, the other parent must still be consulted, and on important matters, like the decision to vaccinate against COVID-19, agreement sought.

The child's views

It's important for parents to consider their child's perspective on being vaccinated. The decision in Long v Steine demonstrates that if a child has sufficient maturity and intelligence to understand the nature of a medical decision, they have the capacity to consent or refuse consent, even if that view is different to their parents.

What happens if guardians disagree?

The role each parent has as a guardian is important in the context of whether to vaccinate their child.  Notably, the legal position is that both parents must agree that their child will be vaccinated before vaccination occurs. If there is a dispute between two guardians on this issue, the first step is to attempt to resolve the disagreement through family dispute resolution. If no agreement can be reached, either guardian can apply to the Family Court for a judge to make the decision.

Previous decisions highlight that the Family Court traditionally places significant weight on the Ministry of Health's Immunisation Schedule and the recommendations made by the Ministry of Health regarding vaccinations. This reliance may be heightened given COVID-19 is a global pandemic. That said, Long v Steine demonstrates that each case will be determined on its own merits and with regard to the specific circumstances which apply.

The decision to vaccinate your child is a considerable one, and this becomes more challenging if parents or guardians don't agree. If you would like to speak to someone about your guardianship rights and general responsibilities, or in relation to the COVID-19 vaccination, please get in touch with Joshua Shaw or Hannah Lindo.