One parent wants the children to be vaccinated against COVID-19, the other does not.

It’s a battle with what’s at stake, a child’s health, and it’s starting to show up in family court, the latest iteration of COVID-19 family legal disputes that began over safety measures like social distancing and whether children should attend virtual or in-person school. And since children ages 5 to 11 are expected to have access to COVID-19 vaccines by the end of the year, courts across the country will soon begin to see even more such disputes.

The court’s response thus far, however, has been consistent with pre-COVID decisions: vaccination is the best for the child, barring very exceptional circumstances.

“When parents do not agree on vaccination issues, especially regarding the COVID vaccine, the court gives the power to make the decision to the parent who is vaccine proof,” said the family’s attorney. Russell Alexander.

The hard part, lawyers say, is how and when judges should take the child’s wishes into account and when they should be allowed to make the decision for themselves.

TO recent case involved 14-year-old triplets in Toronto.

Two live with their dad and go to school virtually until they can get vaccinated. The other triplet lives with his mother, who is opposed to vaccination, but wants all the children to go to school in person.

The mother presented a motion demanding the attendance of the other two children, noting that the COVID-19 vaccine is not mandatory to attend school; the father filed his own motion demanding that the mother hand over the children’s health cards so they can be vaccinated, after which they can attend school in person.

Judge Robert Charney concluded that the analysis is the same that the courts have used for the debate on virtual and face-to-face schooling.

“The government and public health authorities are in a better position than the courts to consider the health risks to children when attending school in person. Therefore, as a general proposal, if face-to-face education is available, it is presumed to be in the best interest of the child, ”he wrote.

Similarly, he continued, “responsible government authorities have concluded that the COVID-19 vaccine is safe and effective for children ages 12 to 17 to prevent serious illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccine. In the absence of strong evidence to the contrary, it is best for an eligible child to be vaccinated, ”he wrote.

Never mind that the vaccine is not required for school attendance, he added.

“It is understandable that governments try the carrot before turning to the stick.”

Charney ordered that all three children be allowed to get vaccinated if they wished, and both parents eventually agreed that they were capable of making that decision. Two of the children wanted to be vaccinated, the other, the one who lives with his mother, did not.

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“Barring some exceptional circumstances, (the judges are ruling) the vaccine will likely be the best for the child,” said family attorney Lisa Kadoory, who represented one of the parents.

The question of when a child can make that decision and how much a judge should take into account their point of view is where the real debate lies, Kadoory said.

Determining whether a child is capable of consent requires a careful exploration of whether the child’s views are consistent and independent of their parents. This can happen through an interview with a social worker or court-appointed attorney, or even when the child speaks to the judge. There is no clear age limit, although it is generally for children over the age of 11 or 12, and it depends on factors such as maturity and the child’s ability to express himself.

“The judges have to give substantial weight to what the children express as their wishes,” said family attorney Christine Vanderschoot. But that can also put children in a difficult and annoying position, wanting to please parents with opposing opinions or to be trained to give particular responses. It also raises questions about how children get information (family, peer groups, online) and if that information is accurate.

“We may have an eight-year-old who doesn’t want to go to the dentist. We still send the child to the dentist because it is the best for them, ”Alexander said.

It can also mean that the courts are faced with parents giving conflicting explanations about what their child wants.

TO Saskatchewan case last month addressed this issue and found that a 12-year-old girl’s opinion about COVID and vaccination was “too influenced” by her mother and grandparents, who oppose vaccination see the Pfizer vaccine as “experimental.” and claim false information about COVID-19 in their court records. He ordered the girl to be vaccinated in consultation with her doctors.

Family court judges are unlikely to enter a “rabbit hole” of questions about whether the vaccine information, for both COVID-19 and other diseases, issued by public health authorities is correct, say the lawyers.

In the Saskatchewan case, the judge declined to consider the “disjointed” information provided to the court about vaccine safety and the “reality” of the pandemic. The case is not about whether there is a pandemic, freedom of expression, politics of the right and left or whether the health measures imposed by the governments are the correct ones, he said.

“This request is about one thing only: Should this 12-year-old girl be ordered to get vaccinated against the COVID-19 virus if she says she does not want that done,” she wrote. “The unique focus of the court in all matters involving children is to do what is in the best interest of the child. Whether the best interest is in accordance with the wishes of the mother or father is secondary to this primary objective. “

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Citing another recent case in Ontario, which upheld on appeal a judge’s decision to take the public health authority’s guidance on vaccines as fact, determined that it could take as fact that contracting the COVID-19 virus represents a health risk. serious and meaningful to people. in general, including children and adults, and that the Pfizer COVID-19 vaccine is safe and effective.

“We don’t have to prove over and over again in every court case that COVID-19 is a serious disease, that vaccines are what the Ontario government has determined is the way that we are going to deal with this,” Vanderschoot said.

But it does mean that judges need to stay on top of the latest information as it evolves, he said.

“The judges have to walk a very fine line because they are not scientists, but I think they have a duty to decide these cases. So they really have to inform themselves about what the consensus of the scientific community is on an up-to-date basis, ”he said.

Since valid exemptions to the COVID-19 vaccine for medical and religious reasons are extremely limited, there may not be an influx of cases on this topic, lawyers say.

With the issue of virtual or in-person schooling, there are more exceptional circumstances for a judge to weigh beyond the child, even if there are highly vulnerable people in the home. But the same arguments do not apply when it comes to vaccinating a child, that does not create a risk for the family.

“According to science and government policy, it is best to vaccinate the child … it is a much, much stricter standard,” Alexander said.

When vaccines are approved for younger children, attorneys hope that decisions will continue to favor vaccination as in the best interest of the child, if that is the consensus of the medical and public health community.

Courts could also start hearing cases over whether parents are vaccinated against the virus, potentially amplified by vaccine passports limiting access to certain locations.

Attorneys say these disputes are almost always best handled outside of court, through other avenues, including mediation.

But when they end up in court, it’s important to know that, in the vast majority of cases, judges start by assuming both parents love their children and are trying to do what they think is best for them, Vansderschoot said.

“People think they are fighting for their son,” he said. “And it is difficult, but the judges want both parties to accept their decision, not only accept it on paper, but internalize and accept it … on the court stage they are co-parents and have to work together on some level “.

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