Best Interests of the Child – When the Family Court becomes the Parent – Is it in the Child’s best Interest to be vaccinated?

Tuesday , 29, November 2016 Leave a comment

The Family Court Act1 provides that the Court must consider the best interests of the Child at all times, when exercising this legislative authority, s.60CA2 the Act states: In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. How a court determines what is in a child’s best interests is outlined in Section 60(CC)3, this paper will examine the position of the Court when it acts as a parent, therefore 60(CC) Sub Section 2(b)4 is not invoked, meaning that there is no suggestion in this scenario of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, just an ordinary loving home, perhaps with parents who can not agree on this issue and need the Court to decide.


Examining the Courts role in exercising parental responsibilities.

The United Nations Convention on the Rights of a Child does not explicitly define a child’s best interests. The term is ‘imprecise, but no more so than the “welfare of the child” and many other concepts with which the courts must grapple’, said the High Court majority in Marion’s Case5.

In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account6. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1) but, if they fail to make the child’s best interests a basic concern, the State may intervene to protect those interests (see article 9.1 for example)7.

In common law the process the Court follows when answering such questions is not subjective but objective. The Court in effect invokes jurisdiction by Parens patriae, taking on the role of the parent.

When it comes to decisions that involve the Doctor-Patient relationship, at Common law this relationship does not exist without informed consent.

In the case of the Family Court of Australia exercising Parens patriae jurisdiction over the child, to ensure the child’s best interests are met, the Court must take the position of the reasonable man, or as the case may be the reasonable parent, it should take the role as a parent exercising and granting informed consent.

As such the Court must consider the question whether it is in the best interests of the Child to be vaccinated.

On one hand there is a preponderance of evidence produced by the Big Pharmaceutical Companies that demonstrate the safety and efficacy of Vaccines generally to the satisfaction of the Government authorities that regulate this area. It is widely acknowledged the benefits vaccines have brought to society over the decades we have been using them and the Governments objectives of increasing vaccination rates, for alleged herd immunity and the greater good of society as a whole.  These are really irrelevant considerations, when considering the individual, and their best interests, the greater good may not be what is best for the child.

In the first instance, the Doctor-Patient relationship can only exist with informed consent, this in turn involves full disclosure, especially when sought by a parent. Secondly the Doctor must consider each patient as an Individual when assessing whether or not the medical treatment proposed is in the best interests of the Child.

To answer this question the Court needs to examine firstly what is the risk involved that the vaccine seeks to prevent.


Infanrix hexa is a vaccine used to prevent six diseases: diphtheria, tetanus, pertussis (whooping cough), hepatitis B, poliomyelitis (polio) and Haemophilus influenzae type b (Hib)8.

According to the World Health Organisation9 there have been 9 Cases of Diptheria in Australia since 2007, there have been Zero cases of Tetanus (Neonatal), there have been Zero cases of Polio.  Hepatitis B is a blood-borne virus. It does not spread in a community setting, especially among children who are unlikely to engage in high-risk behaviors, such as needle sharing or sex10, so is not a relevant or foreseeable risk to an infant unless one of the parents have Hep B themselves as held in Re H [2011] QSC 42711 and Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193 (2 September 2008), Hib does not cover the prevalent strains so can not be considered a significant benefit and finally pertussis is an interesting anomaly in that the more we have vaccinated against it the more it occurs12 with cases peaking last year at 22,508.

It is worthy to note that acellular pertussis (aP) vaccine (the final element of the DTaP combined vaccine), replaced the whole cell pertussis vaccine in the late 1990s, which was followed by an unprecedented resurgence of whooping cough [similar to what we see in Australia].

An experiment with deliberate pertussis infection in primates revealed that the aP vaccine is not capable of preventing colonization and transmission of B. pertussis13. The FDA has issued a warning regarding this crucial finding14.

Against this back drop of seemingly little scientific basis to arouse a reasonable parent to fear that their child is at risk, we must now examine the adverse events associated with Infanrix.

In Duke-Randall & Randall15 the Family Court ordered a child be vaccinated, however in that case there was no evidence before the Court of risk of harm to the children in being immunised.

One in Ten children given Infanrix Hexa will experience appetite loss, irritability, abnormal crying and restlessness with very common pain, redness, local swelling at the injection site, fever 38°C, and fatigue16.

One in a Hundred will experience upper respiratory tract infection, Respiratory, thoracic and mediastinal disorders such as Bronchitis and rhinitis, vomiting, diarrhoea, enteritis and gastroenteritis17 along with Pruritus and local swelling at the injection site over 5cm in size on an infant with fevers reaching 39.5°C, injection site reactions, including induration.

Less common reactions include somnolence, convulsions, bronchospasm, laryngitis, stridor, cough, abdominal pain, constipation, dermatitis, urticaria, conjunctivitis and diffuse swelling of the injected limb, sometimes involving the adjacent joint18.

Additionally in somewhere between 1/1000 and 1/10,000 cases it is associated with blood and lymphatic system disorders, lymphadenopathy, thrombocytopenia Immune system disorders and allergic reactions (including anaphylactic and anaphylactoid reactions) and nervous system disorders including convulsions, collapse or shock-like state (hypotonic hyporesponsive episode) with Respiratory, thoracic and mediastinal disorders apnoea1)[see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19

The list of adjuvants and residues in Infanrix Hexa include aluminium hydroxide, aluminium phosphate, lactose, sodium chloride (salt), Medium 199, potassium chloride, formaldehyde, glycine, sodium phosphate, dibasic dehydrate, potassium phosphate, monobasic, neomycin sulphate, polymyxin B sulfate, polysorbate 20 and 80.

There is no conclusive science to support a position that the above adjuvants and residues have no long term lasting negative effect on humans, in particular the Court ought to consider studies that have linked things like Aluminum to degenerative brain conditions. In a study of Aluminum Neurotoxicity in pre-term infants receiving intravenous-feeding solutions containing aluminum it was associated with impaired neurologic development, brain damage in infants20.

In this case Infarix Hexa contains 0.5mg of aluminium hydroxide 0.32 mg of aluminium phosphate and where in the above study the dosage of 5ug/per kg of body weight was the maximum before noticeable impaired neurologic development, brain damage in infants occurred. The dosage being administered intra-muscularly in vaccines exceeds this limit by 500 times.

There is a Positive Association found between Autism Prevalence and Childhood Vaccination uptake across the U.S. Population21

Moreover there is no conclusive science provided to the TGA in regards to testing on the long term effects of using combinations of vaccines in one dose for convenience.

However we do have reports of adverse events to consider which are released by the TGA22, since January 1st 2014 to now (less than 2 years) there have been 2,575 adverse reactions associated with Infanrix, which include death in two reported cases.

With the TGA Performance statistics report: July 2015 to June 2016 citing some 36,290 adverse events being recorded against vaccines, which when considered against the latest available data of some 3,937,876 vaccines administered in Australia, it represents a 0.93% chance of you or your child experiencing an adverse reaction due to a vaccine.

The TGA also admits there is no data or studies done comparing vaccinated vs unvaccinated children to see if there are any trends in ill-effects of those that are vaccinated against children who are not23.  

The above data and information is all sourced from Government reports, the Manufacturers disclosures and Scientific Journals, there can be no suggestion of bias or cherry picking data, as the entire data-sets are used.

The Court is now in the position to examine the question having invoked its common law jurisdiction of Parens patriae to weigh the information before it, and answer the question from the perspective of the reasonable parent whether on the balance of probabilities that it is in the best interests of the Child to be immunized.

Given the special relationship that exists in the Doctor-Patient relationship which is only created by informed consent (absent consent, it is assault and/or medical malpractice) and the vital public importance of public confidence in the Health System and the maintenance of existing standards of consent as required by law, the Court in light of this needs to consider the individual interest of the child in question.

From the available evidence, there is no reasonably foreseeable risk in the first instance for the diseases being vaccinated against, since 2007 to now there is a statistically insignificant amount of people contracting the diseases, moreover if we do a comparison of the numbers contracting the disease versus the numbers experiencing adverse reactions, we have more adverse reactions than the disease itself.

Against the backdrop of the chances of the child contracting the disease against the adverse reactions reported, is the rights of the child here. The Court exercising its Parens patriae responsibilities weighing the interest of the child, when the child is with a loving, caring and responsible parent to monitor the child’s health and protect it from harm, the Court cannot now order on the balance of probabilities that the child would be better off than not being vaccinated.

The Court can not exercise its responsibilities of the reasonable parent and now order the parents right to informed consent be over-ridden and that any damage done to the child is an acceptable risk. This under no circumstances can be argued as being in the best interests of the Child.

In Rogers v Whitaker25 the High Court considered the position of informed consent, in that case there was less than a 1% chance of an adverse reaction, just as we have here statistically with the vaccines.

In the judgement text of GAUDRON J we can seek guidance in what the Court must consider when weighing the medical risks of a procedure in the best interests of the Child.

Duty of Care

  1. There is no difficulty in analysing the duty of care of medical practitioners on the basis of a “single comprehensive duty covering diagnosis, treatment and the provision of information and advice, provided that it is stated in terms of sufficient generality26.

  2. The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practicing in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk27.

Accepted Practice is not a Consideration at law

  1. Accordingly, even in the area of diagnosis and treatment there is, in my view, no legal basis for limiting liability in terms of the rule known as “the Bolam test”. This test derives from the charge to the jury by McNair J. in Bolam v. Friern Hospital Management Committee (1957) 1 WLR, at p 587) which is to the effect that a doctor is not guilty of negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice. That is not to deny that, having regard to the onus of proof, “the Bolam test” may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule-of-thumb in some jury cases, but it can serve no other useful function28.

Duty to provide all information when asked

  1. Diagnosis and treatment are but particular duties which arise in the doctor-patient relationship. That relationship also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific enquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient29.

The Individual Patient Perspective

  1. Whether the position is considered from the perspective of the individual patient or from that of the hypothetical prudent patient and unless there is some medical emergency or something special about the circumstances of the patient, there is simply no occasion to consider the practice or practices of medical practitioners in determining what information should be supplied. However, there is some scope for a consideration of those practices where the question is whether, by reason of emergency or the special circumstances of the patient, there is no immediate duty or its content is different from that which would ordinarily be the case.

There is no EMERGENCY

  1. Leaving aside cases involving an emergency or circumstances which are special to the patient, the duty of disclosure which arises out of the doctor-patient relationship extends, at the very least, other matters identified as being within the duty of disclosure were the duty to alert the patient to bodily abnormality, the failure of the patient’s ailment to respond to the doctor’s ministrations, limitations to be observed for his or her welfare, precautionary therapy for the future and the need for or desirability of alternative treatment promising greater benefit.), to information that is relevant to a decision or course of action which, if taken or pursued, entails a risk of the kind that would, in other cases, found a duty to warn.


A risk is one of that kind if it is real and foreseeable, but not if it is “far-fetched or fanciful”30. Certainly, the duty to warn extends to risks of that kind involved in the treatment or procedures proposed.

  1. And as at present advised, I see no basis for any exception or “therapeutic privilege” which is not based in medical emergency or in considerations of the patient’s ability to receive, understand or properly evaluate the significance of the information that would ordinarily be required with respect to his or her condition or the treatment proposed.

Finally as there is no Medical Emergency to justify the Court intervening in the Parent-Child and Doctor-Patient relationships, there is no basis for the Court to order a Child be vaccinated against the express wishes of a parent, when the Court exercises its Parens patriae jurisdiction and acts as a Parent would in the best interests of the Child, the data is in, and no matter what the science says that the benefits may outweigh the risks to the community and society as a whole, in this case the onus is on the Court to consider the Child’s best interests individually and here there is no reasonably foreseeable risk that we are protecting the child from and there is an appreciable risk of harm.

SPECIAL NOTE : This post is not to be considered legal advice, Family Law matters are particularly sensitive and we urge any parent reading this and interested to consult your lawyer for legal advice on whether this argument could assist your case.

Edits :
The following paragraph has been removed from the above text as the paper has been pulled by the Journal.

“, however there is a recent study of 415 mothers who provided data on 666 children, of which 261 (39%) were unvaccinated. Vaccinated children were significantly less likely than the unvaccinated to have been diagnosed with chickenpox and pertussis, but significantly more likely to have been diagnosed with pneumonia, otitis media, allergies and neurodevelopmental disorders24.”


1 FAMILY LAW ACT 1975 (Cth).

2 Ibid at S.60(CA).

3 Ibid at S.60(CC).

4 Ibid at S.60(CC), 2(b).

5 Marion’s Case: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

6 Australian Human Rights Commission, Human Rights Brief No. 1, The Best Interests of Child accessed 29.11.2016 at [4.54pm]

7 Ibid.

8 Department of Health, Therapeutic Goods Administration, Infanrix Hexa, accessed 29/11/2016 at [4.55pm].

9 World Health Organisation, Global Summary, Australia accessed 29.11.2016 at [4.56pm].

11 Re H [2011] QSC 427.

12 World Health Organisation, Global Summary, Australia, accessed 29.11.2016 at [4.58pm]

13 Warfel et al. (2014) Acellular pertussis vaccines protect against disease but fail to prevent infection and transmission in a nonhuman primate model. Proc Natl Acad Sci USA 111:787-92 accessed 29/11/2016 at 10.57am.

Baboons vaccinated with aP were protected from severe pertussis-associated symptoms but not from colonization, did not clear the infection faster than naïve [unvaccinated] animals, and readily transmitted B. pertussis to unvaccinated contacts. By comparison, previously infected [naturally-immune] animals were not colonized upon secondary infection.”

14 U.S. Food and Drug Administration, FDA study helps provide an understanding of rising rates of whooping cough and response to vaccination accessed 29/11/2016 at 10.58am.

15 Duke-Randall & Randall [2014] FamCA 126 (12 March 2014)

17 Ibid.

18 Ibid.

19 Ibid.

20 New England Journal of Medicine, Aluminum Neurotoxicity in Preterm Infants Receiving Intravenous-Feeding SolutionsNicholas J. Bishop, M.D., Ruth Morley, M.B., B.Chir., J. Philip Day, Ph.D., and Alan Lucas, M.D.

N Engl J Med 1997; 336:1557-1562May 29, 1997DOI: 10.1056/NEJM199705293362203 accessed 29.11.2016 at [5.02pm]

22 Department of Health, Therapeutic Goods Administration, INFANRIX Database search from 1/1/2014 to 17.8.2016 accessed at [5.04pm] here

23 Email from TGA – Marked as Annex “A”

24 Vaccination and Health Outcomes: A Survey of 6- to 12-year-old Vaccinated and Unvaccinated Children based on Mothers’ Reports accessed 28/11/2016 at [4.47pm].

25 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992)

26 Rogers v Whitaker [1992] HCA 58 at [2]of Guadron J

27 Ibid at [3].

28 Ibid at [4].

29 Ibid at [5]

30 Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, per Mason J. at p 47. See also Gala v. Preston [1991] HCA 18; (1991) 172 CLR 243, at p 253)


References   [ + ]

1. [see Warnings and Precautions for apnoea in very preterm infants (≤ 28 weeks of gestation)]

Skin and subcutaneous tissue disorders like angioneurotic oedema and general disorders and administration site conditions including extensive swelling reactions, swelling of the entire injected limb and vesicles at the injection site19

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