Challenging child COVID vaccines in court unlikely to succeed: lawyer

While there will undoubtedly be disputes between ex-spouses over whether to vaccinate their children against COVID-19, the likely bottom line is that anyone who tries to challenge the issue in court will be unlikely to succeed, says Clark Woods LLP lawyer Martina Milau.

“If you’re getting proper legal advice to fight having your child vaccination, you’ll probably be told that you chance of success is quite low,” says Milau. “And if you do go to court, and your case has no merit, you are not only paying for your own lawyer, but you’ll be also paying a percentage of the other side’s legal fees.”

Milau says there may theoretically be a situation where a parent fighting not to have their child vaccinated might win in court. However, “in the current climate, with [the federal and provincial government] saying everyone should be getting vaccinated, from a public health perspective, it would be difficult for a judge to side with a parent that doesn’t want their healthy son or daughter to get vaccinated.” She adds that a judge would likely defer to the scientists, doctors, and public health officials.

When these cases are taken to court, judges making the final decision base their ruling on the “best interests test,” Milau says, guided only by what is in the child’s best interest.

“I think that the court assumes that it’s in the best interest generally of all children to be vaccinated, subject to a particular child’s vulnerabilities,” Milau says. “So, if you have a particular child in a health situation that would make it vulnerable, those are going to be the tougher cases, not the cases when you have a regular healthy kid and the parents happen to disagree.”

Milau’s comments come as Canada’s review of Pfizer-BioNTech’s COVID-19 vaccine for children between the ages of 5 to 11 should be completed within the next “one to two weeks,” Health Canada’s chief medical adviser says.

“As with all of the COVID-19 submissions, we’re doing it on a priority basis and we have a dedicated team that’s looking at that data and that data is not just the clinical data, but the formulation,” Dr. Supriya Sharma told a Public Health Agency of Canada briefing in Ottawa last week. “And we look at that in the Canadian context for the ... possible use in children.”

Three weeks ago, Pfizer-BioNTech became the first company to seek Health Canada’s approval for a pediatric COVID-19 vaccine. Other companies, including Moderna, are working on children’s formulations.

Sharma said last month that while the children’s version of the vaccine is “slightly different” from the adult one, it contains the same mRNA and works the same way.

Chief Public Health Officer Dr. Theresa Tam also told the media briefing last week that, for the second week in a row, “children under 12 continue to have the highest incidence rates across all age groups.”

More than 28 million people — representing 85 per cent of the eligible population over age 12 — are fully vaccinated against the virus. However, Tam says there are “sizeable gaps in vaccine coverage,” with four million children under 12 unvaccinated, along with five million Canadians already eligible.

With children aged 5-11 soon to be for COVID-19 vaccination in British Columbia and other provinces, parents have been advised by public health authorities to start registering their children. However, when divorced or separated parents disagree on whether their child should be vaccinated, Milau recommends couples splitting guardianship and custody “act early” if there is disagreement. Parents unable to agree on vaccination risk disruption to their children’s daily routine, loss of school time and emotional distress.

When it comes to the COVID-19 vaccine, if parents disagree on vaccinating their child, Milau says the judge will consider factors such as: how old the child is, any medical situation that is particular to the child, if they were already attending school, the impact of not going to school to see peers and teachers if they became ill, and missing out on social and educational interactions.

Milau says that given how judges have been following the recommendations of public health authorities, it is possible for someone to represent themselves if they are dealing with an ex who doesn’t want their child vaccinated, especially if there is an agreement in provincial court, which has less complicated procedures.

If the case is with the province’s Supreme Court, the rules and procedures are a little more complicated. “I would probably consider getting some legal advice with filing the proper documents because it is procedurally far more regimented with the Supreme Court,” Milau says.

While there may be one parent who has the children in their care more than the other, that does not mean that the one parent has more rights about decisions regarding areas such as health or education unless one parent has been deemed a risk.

“Generally, both parents have those decision-making responsibilities.”