Case update: More on courts and vaccines
This case update was written by Pamela Cross, Luke’s Place Legal Director.
Two recent cases, with very similar facts, look at this issue from the perspective of the views and preferences of the child and come to the same conclusion, which is somewhat different from that reached in the earlier cases. Below is a summary of the case heard by Justice Pazaratz, because it provides much more detailed reasons. Should you want to read the other case, you can find it here.
In J.N. and C.G., Justice Pazaratz once again provides a lengthy and often entertaining decision. (The full case is worth reading just for that reason.)
The separated parents had three children, a 14-year-old son, who lived primarily with the father, and a 12-year-old daughter and 10-year-old son, who lived primarily with the mother. Each parent had sole decision-making responsibility for the child(ren) who lived with them.
The parents did not agree about whether the children should be vaccinated against COVID-19, which had been noted in the Minutes of Settlement they had signed in October 2021. Shortly after this, the oldest child made the decision that he wanted to be vaccinated; a decision that both parents supported.
The mother, however, had some concerns about vaccinating the two younger children, which led to the father bringing a motion for an order that they be vaccinated and that he be placed in charge of seeing that this happened.
In making his decision, Justice Pazaratz found that the mother’s evidence focused entirely on the medical and scientific issues, whereas the father focused on labelling and discrediting the mother.
He also noted the following:
- All parenting decisions, including those related to health issues, must be determined based on the best interests of the child, which includes consideration of the children’s views and preferences
- Decisions must reflect the best interests of “each particular child in each particular fact situation”
- Decisions must be based on evidence
- The evidence in this case was that the children’s views – that they did not wish to be vaccinated – had been independently ascertained, as confirmed in a Voice of the Child Report, which stated: “each of the children presented confidently and thoughtfully [and] showed consistency in their views and preferences”
Justice Pazaratz reviewed the factors courts are to consider when assessing a child’s wishes and concludes that, while those wishes are not determinative, on the facts in this case, they are to be given considerable weight. He found that:
- The children had a good understanding of the purpose of vaccination
- They understood the seriousness of COVID-19
- Their objection to being vaccinated had been clearly and consistently stated, and they provided specific, well thought out reasons
- They both had “sufficient age, intelligence, maturity and independence of thought to understand the issue and formulate their own views, feelings, comfort level, questions and fears about what should or should not happen to their bodies”
- Their views were very strongly held and they had maintained them “for an extended period of time”
- There was no indication that the mother had “inappropriately drawn the children into any sort of personal or political agenda”
In deciding to dismiss the father’s motion, Justice Pazaratz wrote:
“Despite the father’s relentless campaign to dismiss the mother as some sort of lunatic, the reality is that the mother presented all her evidence and made all her oral submissions in a calm, mature, articulate, analytical, extensively researched, and entirely child-focussed manner.”
He makes the point that it is not the court’s job to decide whether the mother’s views are correct: “I am not being asked to make a scientific determination. I am being asked to make a parenting determination. I am not being asked to decide whether vaccines are good or bad. . . My task is to determine which parent is to have decision-making authority over [the children] with respect to the very narrow issue of COVID vaccinations.”
Justice Pazaratz’s conclusion is that:
“On balance, I am satisfied that the mother’s request for a cautious approach is compelling, and reinforced by the children’s views and preferences, which are legitimate and must be respected. The mother has consistently made excellent decisions throughout the children’s lives.”
The decision also includes some interesting thoughts by Justice Pazaratz about what kinds of evidence are acceptable, when judicial notice should and should not be applied and, more generally, the dangers of unquestioningly believing everything government says. He also included a postscript to his order:
“It’s irrelevant to my decision and it’s none of anyone’s business. But I am fully vaccinated. My choice.”
