Recent case on Vaccination of Children in the Federal Circuit and Family Court of Australia

In Makinen & Taube [2021] FCCA 1878 (16 August 2021) the Court that deals with making parenting orders was asked to consider what should happen when parents have opposing views on childhood vaccinations.

The Father’s position was that he did not know a lot about vaccines but would vaccinate the children in accordance with advice from the children’s general practitioner. The Mother had done extensive research into medical literature and believed vaccinations are harmful, and that the children should not be vaccinated. She believes standard childhood vaccination programs constitute a serious health risk to children.

The Court ultimately made an Order that the Father have sole parental responsibility, in respect of all decisions relating to the children’s immunisation and vaccination.

The judge reviewed the literature relied upon by the mother, which was ‘extensive and dense.’ The themes of many of the articles are that:

(a) Vaccines contain various concentrations of aluminium;

(b) Research and studies of various patient cohorts, mainly in France, have shown some potential association between the injection of vaccines containing aluminium into the deltoid muscle and the incidence of macrophagic myofasciitis (MMF), a condition understood to be an inflammatory mechanism affecting various parts of the body;

(c) The association between aluminium in various products/vaccines and neurological disorders is being studied, but is not yet well understood. Further research is required and there remain considerable unknowns;

(d) Some literature is to the effect that autoantibodies, inflammatory conditions and overt auto-immune disease can be caused by vaccines but are rare;

(e) Vaccination might trigger auto-immune, inflammatory or neurological disorders;

(f) Greater caution is recommended when approaching the vaccination of children as compared to adults because they are potentially more vulnerable; and,

(g) Most studies have involved limited epidemiological assessment and found inconclusive evidence of clear association between various vaccines and particular adverse events/diseases, and results of studies identify genes and variables other than vaccine as potential contributions to the occurrence of the diseases.

The Judge noted that the Commonwealth government’s recommendations about vaccination contained in the Australian Immunisation Handbook along with advice on its website can be seen to have developed and compiled over many years stating ‘It relies on published medical and scientific literature. This literature, the Judge wrote, includes publications from widely known, reputable and leading scientific and medical journals such as the Lancet and the Australian Medical Journal. The recommendations/advice are also referenced to the World Health Organisation (WHO). WHO is commonly known to be a United Nations body responsible for international public health and I take judicial notice of this fact.’

The judge formed the view that the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother's affidavits, writing ‘the former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community’.

The Judge concluded that the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.

The judge concluded that on the basis of her evidence the Mother has firm and strong bias against vaccination of any kind. On the evidence, the Judge concluded that she initially developed a belief about harm of vaccination from hearsay information from a friend/acquaintance prior to the children’s birth. This belief has become entrenched consequent to her own interpretation of various publications which she has sought out and read. In the Judge’s the Mother’s interpretation of the scientific and medical literature annexed to her affidavits in my view are not wholly supported by the literature itself when read in context and overall.

It was held that ‘it is not in the best interests of the children to make a blanket or even conditional injunctive order that prohibits a particular form treatment, in this case vaccination. It is not possible to contemplate every scenario that may arise depending on the existence or prevalence of disease and variables which may influence whether vaccination should be given based on a child’s physical status. Such variables may include allergies and potentially heightened risks due to genetic pre-disposition. These variables reasonably necessitate medical advice but do not automatically mean vaccination should not be given. Equally, it is not in the best interests of the children to deny them from receiving vaccination that will prevent or reduce suffering from a disease that has been demonstrated to be avoidable from vaccination and is safe for them.’

The Judge also held that the terms of the orders should limit the Mother’s capacity to provide feedback and her involvement in any vaccination. Further, if she is involved, a restraint is required to prevent undue influence of the children and to prevent her from making anti-vaccination statements.

Full Judgement: https://www.austlii.edu.au