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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
A Voice not a Choice? Child Participation in the Time of COVID-19
Rose Siebuhr
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2023
Acknowledgments
To my supervisor, Professor Nicki Taylor, thank you for all your guidance and support, and for sharing your passion and expertise on child participation with me.
To my teachers throughout all my years of education, especially Mr Faulls. Thank you for believing in me.
Finally, to my parents, for your constant love and support, without which I would not be where I am today.
List of Abbreviations
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Care of Children Act 2004
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COVID-19
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Coronavirus disease
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CRPD
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Convention on the Rights of Persons with Disabilities 2006
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FDR
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Family Dispute Resolution
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UNCRC
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United Nations Convention on the Rights of the Child 1989
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UNICEF
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United Nations International Children’s Emergency Fund
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Table of Contents
I. Introduction
“The central issue is not whether we should treat children like adults, but instead whether we should treat them like people”.1 Children are almost always the subjects of decisions made by adults. This is only exacerbated when disputes between adults, over matters affecting the child, come before the courts. Providing the child with opportunities to express their views on these matters is critical for respecting the child as the person who will ultimately be affected by the decision, and as the person who is “the most reliable [witness] of their own experience”.2
This dissertation considers the right of the child to participate in matters that affect them, in the context of disputes between guardians over whether, or not, the child should receive the COVID-19 vaccinations. This will offer a unique insight into how New Zealand judges are upholding the right of the child to participate, when faced with decisions concerning the child’s medical treatment in the wider context of a global pandemic.
Chapter One provides an introduction to disputes between guardians and the COVID-19 pandemic. The prolific research findings on child participation are also summarised, emphasising the great importance of upholding the child’s right to participate in family law decision-making contexts.
II. Guardianship Disputes
Guardians are responsible for making decisions about “important matters” affecting their child(ren).3 A guardian of a child is anyone who has the “duties, powers, rights and
1 Gary Melton “Parents and children: Legal Reform to Facilitate Children’s Participation” (1999) 54 American Psychologist 935 at 936.
2 Anne Smith, Nicola Taylor and Pauline Tapp “Rethinking Children’s Involvement in Decision-Making after Parental Separation” (2003) 10(2) Childhood 201 at 202.
3 Care of Children Act 2004, s 16(1).
responsibilities that a parent of the child has in relation to the upbringing of the child”, making the role of a guardian critical for a child’s development.4
Section 16(1) of the Care of Children Act 2004 (COCA) provides that as part of the “duties, powers, rights, and responsibilities of a guardian of a child”, guardians should determine for, or help the child to determine, “questions about important matters affecting the child”.5 Section 16(2) stipulates that these “important matters” include the child’s name, registered sex, changes to their place of residence, non-routine medical treatment, where and how the child is to be educated, and the child’s culture, language and religion.6 As part of the non-routine medical treatment affecting the child, guardians ought to determine, or help the child to determine, whether their child should receive the COVID-19 vaccinations.
Section 16(5) of COCA stipulates that in exercising the duties, powers, rights, and responsibilities of a guardian, guardians must act jointly.7 If guardians are unable to do so, they may make an application to the court for direction under s 46R.8 This is how disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations have come before the court.
In New Zealand, the right of the child to participate in disputes between their guardians over important matters affecting them is set out in s 6 of COCA. Section 6 was greatly influenced by Article 12 of the United Nations Convention on the Rights of the Child (UNCRC), which was ratified by New Zealand in 1993 and, in Article 12, guarantees the right of the child to participate in matters that affect them.9 Section 6 states that in proceedings involving the guardianship, day-to-day care, or contact for a child, among other matters, “a child must be
4 Care of Children Act, s 15(a). 5 Care of Children Act, s 16(1). 6 Section 16(2).
7 Section 16(5).
8 Section 46R(1).
9 United Nations Convention of the Rights of the Child GA Res 44/25 (1989), art 12.
given reasonable opportunities to express views on matters affecting the child”, and that any views they do express “must be taken into account”.10 Therefore, when disputes between guardians arise over whether, or not, their child(ren) should receive the COVID-19 vaccinations, any views that the child expresses must be a part of the weight of evidence before the judge.
Before an application is made to the Family Court, many disputes between guardians must first start with the out-of-court Family Dispute Resolution (FDR) service.11 FDR was introduced in March 2014 as a form of mediation to assist parents to resolve their dispute themselves. The Family Dispute Resolution Act 2013 states that as part of the duties of FDR providers, they “must make every endeavour” to provide the child with “any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate”.12 Therefore, when guardians are unable to agree whether their child(ren) should receive the COVID-19 vaccinations, every endeavour must be made in the FDR process to provide the child(ren) with the opportunity to express their views on vaccination. Where agreement cannot be reached between the parents then their dispute proceeds to court.
III. COVID-19
Very recently, the right of the child to participate in matters that affect them was considered in an unprecedented context. At the beginning of 2020, the world was faced with a global pandemic, with the spread of the infectious Coronavirus disease (COVID-19). The first case of COVID-19 was detected in New Zealand in February 2020 and, as the virus spread, this resulted in multiple nation-wide lockdowns throughout 2020 and 2021.13 In March 2021, the New Zealand Government announced its “vaccine rollout plan” for anyone aged 16 or over.14 Great emphasis was placed on the importance of vaccinations, with the Government’s goal of
10 Care of Children Act, s 6.
11 Care of Children Act, s 46E.
12 Family Dispute Resolution Act 2013, s 11.
13 Ministry of Health “Single case of COVID-19 confirmed in New Zealand (28 February 2020) <health.govt.nz>.
14 Unite Against COVID-19 “COVID-19 Vaccine Rollout Plan” (10 March 2021) <covid19.govt.nz>.
wide-spread immunisation to reduce the spread and severity of the disease .15 In August 2021, the Government announced that all children aged 12 – 15 years were eligible for the COVID- 19 vaccinations, sparking the first set of disputes between guardians over whether their children should receive them.16 In January 2022, children between the ages of 5 – 11 became eligible for a pediatric dose of the vaccine; and finally, in February 2023, some children aged between six months to four years became eligible.17
In the guardianship disputes that reached the courts, the judiciary was tasked with determining whether, or not, a child should receive the COVID-19 vaccinations, in the context of the greater societal need to implement widespread vaccination, and to protect vulnerable members of the wider community. Concurrently, the judiciary was also conscious that “there is not any data to support the inevitability of children who get COVID-19 dying from COVID-19”.18 Therefore, while the wider societal needs were profound, the impact on the individual child was relatively minor. This meant that the nature of the decision was such that the views of the child regarding the COVID-19 vaccinations could be ascertained and afforded significant weight. Overall, these factors provided an unprecedented set of circumstances within which to consider the right of the child to participate.
IV. Research Evidence on Child Participation
Since the almost universal ratification of the UNCRC, there has been a flourishing of research on child participation.19 Historically, children have been seen as human “becomings”, as opposed to human “beings”.20 However, Childhood Studies has revealed how children should be taken seriously, and childhood is now viewed as its own significant stage in life, as opposed to a mere “precursor to adulthood”.21 Critically, sociocultural theories have revealed that:22
15 Peter Wilson “The Week in Politics: Vaccinate, vaccinate, vaccinate” (17 September 2021) RNZ <rnz.co.nz>
16 Starship “COVID-19 Vaccination in Children” (7 February 2023) <starship.org.nz>
17 Starship “COVID-19 Vaccination in Children”, above n 16.
18 Long v Steine [2022] NZFC 251 at [29].
19 Deborah Inder “Children’s Participation in the Context of Private Law Disputes in the New Zealand Family Justice System” (Doctor of Philosophy, University of Otago, 2019) at 12.
20 Nicola Taylor, Pauline Tapp and Mark Henaghan “Respecting Children’s Participation in Family Law Proceedings” (2007) 15 International Journal of Children’s Rights 61 at 63.
21 Taylor, Tapp and Henaghan, above n 20, at 63.
22 Smith, Taylor and Tapp, above n 2, at 203.
Development, instead of unfolding in a predictable fashion from infancy to adulthood, is seen to come about through a gradual acquisition of knowledge and understanding of the world through activities in cultural settings or ‘communities in practice’.
This emphasises that children should be respected and taken seriously, regardless of their age.23
Research has also demonstrated that even very young children and infants are capable of understanding and expressing their views, with the appropriate support from adults.24 One way of providing support is through “scaffolding”, where adults work with children to help them to understand the situation, and to develop their own views at a “developmentally appropriate level”.25 This allows a child to express their views more skillfully, enhancing their right to participate.26 However, one of the major barriers to effective child participation is a lack of professional training.27 Having adults who are properly trained to elicit and understand children’s views is an important part of providing children with “reasonable opportunities” to express their views, as it ensures that those who are listening to the child can “engage the child” and understand what they are expressing.28
Research evidence has additionally highlighted the significant benefits for the child and the decision-maker from the enhancement of a child’s right to participate in family law contexts.29 Engaging with the child, and respecting them, will increase their resilience to better cope with the dispute between their parents and guardians, and the decision made.30 Far from placing any burden of responsibility on the child to make a decision, allowing the child to express their views ensures that any anxieties or concerns the child has are aired and managed.31 Furthermore, children have expressed strong desires to be informed, have their views heard,
23 Bill Atkin and others “Fifty Years of New Zealand Family Law” (2013) 25 NZULR 645 at 648.
24 Anne Smith “Interpreting and Supporting Participation Rights: Contributions from Sociocultural Theory” (2002) 10 International Journal of Children’s Rights 73 at 82.
25 Stephen Coyle “Sociology of Childhood: Implications for our Practice as Lawyers” (2007) 5 NZFLJ 256 at
257.
26 Smith, Taylor and Tapp, above n 2, at 203.
27Aisling Parkes “Implementation of Article 12 in Family Law Proceedings in Ireland and New Zealand” in T Gal and B Duramy (eds) International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies (Oxford University Press, Oxford, 2015) at 129.
28 Peter Boshier “The Care of Children Act 2004: Does it Enhance Children’s Participation and Protection Rights?” (2005) 9 Journal of the Children’s Issues Centre 7 at 11.
29 Smith, Taylor and Tapp, above n 2, at 201. 30 Smith, Taylor and Tapp, above n 2, at 201. 31 Smith, Taylor and Tapp, above n 2, at 204.
and to be active participants in the decision-making process.32 Hearing the child’s views is also beneficial for the decision-maker, as children are “the most reliable witnesses of their own experience”.33 As the child is the person ultimately affected by the final decision, the more that the child’s views are heard and understood, the better the decision will be for the child.34
V. Summary
The novel circumstances of the COVID-19 pandemic set the scene for considering the right of the child to participate in a completely new line of guardianship disputes involving non-routine medical treatment. Copious research evidence on the importance of upholding the right of the child to participate in family law proceedings emphasises the significance of considering this right in the context of disputes about whether, or not, child(ren) should receive the COVID-19 vaccinations.
In Chapter Two, the legislation governing parental disputes about children’s medical treatment (including vaccinations) and the child’s right to participate is outlined. There is a particular focus on the current interpretation of COCA by the judiciary, and scholarly criticisms of this. It discusses how to properly uphold the right of the child to participate, with an analysis of the current pathways used to elicit a child’s views, and the steps that need to be taken to ensure that effective opportunities to participate occur.
Chapter Three critically analyses 14 disputes between parents/guardians within the Family Court and High Court that occurred during the COVID-19 pandemic regarding whether, or not, child(ren) should receive the COVID-19 vaccinations. It assesses how judges are determining the weight to be afforded to the child’s views in making their decision, and considers the external evidence that courts are relying on to determine what is in the child’s welfare and best interests. A comparison is also drawn with similar immunisation decisions in the Australian courts.
32 Nicola Taylor, Anne Smith and Karen Nairn “Rights important to young people: Secondary student and staff perspectives” (2001) 9 International Journal of Children’s Rights 137 at 153.
33 Smith, Taylor and Tapp, above n 2, at 202.
34 Mark Henaghan “Article 12 of the UN Convention on the Rights of Children” (2017) 25 International Journal of Children’s Rights 537 at 541.
Chapter Four discusses the implications of the case law analysis presented in Chapter Three, and sets out one key recommendation for more effectively upholding the right of the child to participate in the future.
Chapter Two: The Legal Context
I. Introduction
This chapter sets out the legal context relevant to child participation in disputes between guardians over whether, or not, their child should receive the COVID-19 vaccinations. The international context, and New Zealand’s current approach to the resolution of disputes between parents/guardians over important matters affecting the child, such as medical treatment and vaccination, is explained. The key statutory provisions that courts must consider, and their legislative history, are outlined, including those pertaining to the child’s right to express their views in the proceedings. How the New Zealand courts have applied and interpreted this right is analysed, with a particular emphasis placed on the criticisms of these interpretations.
II. The International Context
The international context for the right of the child to participate is crucial for understanding this right in the context of New Zealand law. Two aspects of international law are considered. First, the UNCRC, which was ratified by New Zealand in 1993, making it a significant part of how the right of the child to participate is understood in New Zealand, and secondly, the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority regarding the right of the child to participate in the context of medical treatment decisions.35
Article 12(1) of the Convention provides that:36
35 Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112 (HL).
36 United Nations Convention of the Rights of the Child, above n 9, art 12(1).
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
The UNCRC was instrumental in enhancing the child’s right to participate internationally, acknowledging that “children have their own agency and rights”.37 Since New Zealand’s ratification of the Convention, and the enactment of COCA, New Zealand has gone further than Article 12, removing the restrictions of the right to participate to children capable of expressing their views, and who are of sufficient age and maturity.38
In the English case of Gillick v West Norfolk and Wisbech Area Health Authority, the House of Lords was faced with the question of whether a child could, without the permission of their guardians, be prescribed contraception.39 Lord Scarman famously stated in this case that:40
As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable them to understand fully what is proposed.
This principle is known as “Gillick competency”, and stands for the fact that “children’s powers to make their own decisions gradually increase as they mature, rather than arbitrarily occurring at a prescribed age”.41 While this principle is not explicitly included in COCA, the philosophy underpinning the decision has been held to be consistent with the Act.42 This decision is particularly pertinent for disputes between guardians over whether, or not, their child should receive the COVID-19 vaccinations, as it recognises that some children may be able to provide their own consent to vaccination.
37 Atkin and others, above n 23, at 652.
38 Care of Children Act, s 6.
39 Gillick v West Norfolk and Wisbech Area Health Authority, above n 35, at 414.
40 At 423.
41 Mark Henaghan and Ruth Ballantyne “Bill Atkin: A fierce defender of children’s rights and proponent of child- focused legislation” (2015) 46 VUWLR 591 at 595.
42 Hawthorne v Cox [2007] NZHC 840; [2008] 1 NZLR 409 (HC) at [61].
III. The Legislative Context
In New Zealand, COCA is the primary piece of legislation that governs disputes between guardians over important matters affecting the child. This legislation sets out how these disputes reach the courts, how courts ought to determine these disputes, and, importantly, the right of the child to participate in such disputes.
In New Zealand, the interpretation of s 6 was originally considered in a line of cases in 2006, which have received significant criticism from academics and judges. These cases and their criticisms are critical for understanding how the right of the child to participate should be applied in the context of disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations.
The “welfare of the child” is a long-standing principle in family law. It was first introduced in New Zealand in the Infants Guardianship and Contracts Act 1887, and later elevated to the “first and paramount consideration” in the Guardianship of Infants Act 1926.43 Currently, s 4 of COCA provides that in all proceedings involving the guardianship, day-to-day care, or contact of a child, “the welfare and best interests of the child must be the first and paramount consideration”.44 Therefore, in disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations, the welfare and best interests of the child must be the first and paramount consideration for the judge.
Section 4 requires an “individualised assessment”, which the court must undertake with reference to the principles listed in s 5. These principles assist the judge in determining what is in the particular child’s welfare and best interests when the parents are in dispute.45
43 Guardianship of Infants Act 1926, s 2.
44 Care of Children Act, s 4. COCA took effect from 1 July 2005., and “best interests” was added to this provision in acknowledgement of Article 3 of the UNCRC.
45 Bill Atkin “Harmonising Family Law” (2006) 37 VUWLR 465 at 474; and Care of Children Act, s 5.
The paramountcy principle is rather vague, and judges are sometimes criticised for relying on their own personal views and philosophies, as opposed to “premediated legal reasoning”, to determine what is in the child’s overall welfare and best interests.46 This is particularly so when considering the child’s future well-being, as this can never be based on fact.47
New Zealand first introduced a mandatory requirement to ascertain the wishes of the child in the Guardianship Act 1968.48 Section 23(2) held that in any matters relating to the care, custody, or guardianship of the child:49
The court shall ascertain the wishes of the child, if the child is able to express them, and shall... take account of them to such extent as the court thinks fit, having regard to the age and maturity of the child.
This was since replaced by s 6 of COCA, with the Family Court (Supporting Children in Court) Legislation Act 2021 inserting a new principle - s 5(g) - into the s 5 principles. This provides that in determining what is in the child’s welfare and best interests, “a child must be given reasonable opportunities to participate in any decision affecting them”.50 Therefore, a decision cannot be in a child’s welfare and best interests unless they have been given reasonable opportunities to participate. This Act also amended s 6, to provide that the purpose of the section is to implement Article 12 of the UNCRC in New Zealand.51
The enactment of s 6 was a significant step forward in upholding the right of the child to participate, which is demonstrated by several key differences between s 6 of COCA and s 23(2) of the Guardianship Act. This, in turn, provides important guidance on how s 6 ought to be applied. First, s 6 replaces the word “wishes” with “views”. While a wish is synonymous with a preference, the term “views” is broader, including any advantages and disadvantages that the
46 Atkin and others, above n 23, at 656 and 657.
47 Atkin and others, above n 23, at 658.
48 Inder, above n 19, at 61
49 Guardianship Act 1968, s 23(2).
50 Family Court (Supporting Children in Court) Legislation Act 2021, s 5(g).
51 Care of Children Act, s 6(1AAA).
child perceives, and the factors they see as important.52 This may allow a judge to acquire a more meaningful understanding about what is important to the child, and to incorporate this into their decision. Furthermore, it may be easier for younger children to express views than it is for them to state a desired outcome.53 This suggests that s 6 seeks to encourage children of all ages to have the opportunity to express their views, which is confirmed by the removal of the phrase “if the child is able to express them”. This, alongside the removal of the “age and maturity” considerations, eliminates any restrictions based on the ability of the child to vocalise their views.54 This removal of “age and maturity” placed New Zealand as a world leader in upholding the child’s right to participate.55 Finally, s 6 requires that the child be given “reasonable opportunities to express their views”, which may require a diverse range of resources, support, and information to be provided to the child.56 Overall, s 6 provides a more progressive, child-centered approach than that in the Guardianship Act, ensuring greater respect for the child’s right to participate in matters that affect them.
This has several implications for disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations. First, the word “views” suggests that children should be given opportunities to not only state if they want to receive the vaccination, or not, but also to express anything they might perceive about the circumstances. Secondly, the removal of “if the child is able to express them” indicates that judges should not be making assumptions about whether children can express views on vaccination, particularly based on their age and maturity. Finally, children must be given reasonable opportunities to express their views, which may mean that some children will require additional support, particularly to understand COVID-19 and the implications of vaccination.
52 C v S (parenting orders) [2006] NZHC 495; [2006] 3 NZLR 420 (HC) at [31].
53 R v S [2003] NZHC 1010; [2004] NZFLR 207 at [106].
54 Inder, above n 19, at 7.
55 Rebecca Stahl “‘Don’t Forget About Me’: Implementing Article 12 of the United Nations Convention on the Rights of the Child” (2007) 24 Arizona Journal of International and Comparative Law 803 at 833.
56 Care of Children Act, s 6; and Pauline Tapp “A child’s right to express views: a focus on process, outcome or a balance?” (2006) 5 NZFLJ 209 at 210.
There are two key ways that a child’s views are ascertained in guardianship disputes. The first is through the appointment of a lawyer for the child, and the second is through a judicial meeting with the child.
The primary way that a child’s views are ascertained in New Zealand is through the appointment of a lawyer for the child by the Family Court. Section 7 of COCA stipulates that a court may appoint a lawyer for the child if the court “has concerns for the safety or well- being of the child” and “considers an appointment necessary”.57
The original broader wording of s 7 was narrowed by s 5 of the Care of Children Amendment Act (No 2) 2013. Section 7 previously stipulated that the court must make an appointment if the proceedings involve the day-to-day care or contact of the child, unless the court is satisfied that “the appointment would serve no useful purpose”.58 Despite this diminishment to the child’s right to participate,59 the Family Court has adopted a broad interpretation of the s 7 requirement, determining that any dispute between parents that escalates to a court hearing raises concerns about the well-being of the child involved.60
Section 9B(1) of the Family Court Act 1980 sets out the dual role of a lawyer for the child, stipulating that they must promote the child’s welfare and best interests, and advocate for the child’s views. They must also meet with the child if appropriate and ascertain their views on the matter.61 If a parenting order under s 48(1) is made, the lawyer must “take all reasonable steps” to explain it in a manner and language that the child understands.62
The Family Court (Supporting Children in Court) Legislation Act recently amended the role of the lawyer for the child. It has inserted s 7(2), which provides that, as far as reasonably
57 Care of Children Act, s 7.
58 Care of Children Act, s 7, as at 25 September 2013; and Care of Children Amendment Act (No 2) 2013, s 5.
59 Henaghan and Ballantyne, above n 41, at 606
60 Bill Atkin “Controversial Changes to the Family Justice System in New Zealand: Is the Private Law/Public Law Division Still Useful?” (2015) 29 IJLPF 183 at 197.
61 Family Court Act 1980, s 9B(2).
62 Care of Children Act, s 55(4).
practicable, a lawyer for the child must be appointed who is “suitably qualified to represent the child... by reason of their personality, cultural background, training and experience”.63 It also inserted s 7AAA, which states that a lawyer for the child must, “if it is reasonably practicable to do so having regard to the age and maturity of the child ... explain the proceedings to the child in a way that the child will likely understand”.64
Judicial meetings – which allow the judge to meet directly with the child – are another way that a child’s right to participate is upheld in New Zealand. A lawyer for the child must ascertain whether the child wants to meet with the judge, and if they do, arrange the meeting.65 Former Principal Family Court Judge, Judge Boshier, asserts that judicial meetings can be highly beneficial for both the judge and the child.66 They can ensure the child is properly respected, and can help the child to understand that it is the judge who is responsible for the final decision, not the child, relieving pressure.67 These meetings allow the judge to hear first- hand the most up-to-date views of the child, to gain an appreciation of the strength of the child’s views, and to aid the judge to better understand the child as a person.68 Children commonly express their desire to be heard by the decision-maker directly, and their belief that judges should meet the person they are making the decision about.69
Judicial meetings have a relatively long history in New Zealand. In Re Gilberd (An Infant), a case from 1913, Chapman J stated that he “questioned the girl in private” about the matter.70 Judicial meetings have since evolved to become more routine in nature in New Zealand, with empirical research demonstrating that judges are generally displaying an increasingly positive attitude towards them.71 As the New Zealand judiciary has become more familiar with the
63 Family Court (Supporting Children in Court) Legislation Act, s 7(2).
64 Family Court (Supporting Children in Court) Legislation Act, s 7AAA.
65 Family Law Section New Zealand Law Society “Lawyer for the Child - Best Practice Guidelines” (Guidelines, February 2018), cl 10.2.
66 Boshier, above n 28, at 10.
67 Boshier, above n 28, at 10.
68 Boshier, above n 28, at 10.
69 Parkes, above n 27, at 120.
70 Re Gilberd (An Infant) [1913] NZGazLawRp 124; (1913) 15 GLR 631.
71 Nicola Taylor and John Caldwell “Judicial Meetings With Children: Documenting Practice Within the New Zealand Family Court” (2013) 3 NZLR 445 at 445 and 448.
practice of directly communicating with children, concerns about whether judges have the appropriate expertise to hold such meetings have begun to dissipate.72
As the appointment of a lawyer for the child and judicial meetings are important ways of ascertaining the views of the child, they are crucial to upholding the right of the child to participate in disputes over whether, or not, the child should receive the COVID-19 vaccinations. They are part of providing the child with reasonable opportunities to express their views on receiving, or not receiving, the vaccinations, and whether these meetings have occurred provide an insight into whether the right of the child to participate in this matter was appropriately upheld.
Following COCA’s enactment in 2005, several cases came before the courts regarding how s
6 should be interpreted, particularly focusing on the removal of the age and maturity considerations. These cases, and the scholarly criticisms of them, provide important insights into how to properly uphold a child’s right to participate on matters that affect them.
C v S [2006]: The first High Court case to consider the proper application of s 6 was C v S.73 The lawyer for the child had failed to ascertain the views of a four-year-old child, determining that the child was too young.74 On appeal to the High Court, Randerson J held that while the s 6 requirement was not complied with, there was no reasonable possibility that the child’s views would affect the outcome of the case.75 Justice Randerson held that although Parliament had removed the “age and maturity” criteria in s 6, it cannot have intended that those factors should not still be used by the Court to assess the weight to give to a child’s views.76
This approach to s 6 was criticised by Professor Mark Henaghan, who argued that Randerson J had fundamentally misunderstood the removal of “age and maturity”.77 Henaghan asserted
72 Taylor and Caldwell, above n 71, at 453.
73 C v S, above n 52.
74 At [21].
75 At [40].
76 At [31].
77 Mark Henaghan “Case Note: Children’s views - two steps forwards, one step backwards” (2006) 5 NZFLJ 154 at 154.
that the removal was intended to prevent judges from dismissing a young child’s views on the basis that they are “immature”.78 Henaghan maintained that a child’s views should not be considered in this manner, as children do not develop along “standard developmental lines”.79 This means that instead of using the child’s age and maturity as markers to assess the weight to be afforded to the child’s views, the decision-maker needs to listen to the child carefully, and consider “whether or not their expressed views represent significant feelings for that particular child”.80 Henaghan also noted that Randerson J failed to understand in C v S that a child’s views are not obtained for the purpose of determining the outcome of the case, but to ensure that the child is listened to, respected, and taken seriously, as the person affected by the decision.81
Brown v Argyll [2006]: Further guidance on the application of s 6 was provided by Priestley J in Brown v Argyll.82 He suggested that, as s 6 is a mandatory provision, failure to provide the child with reasonable opportunities to express their views, and to take such views into account, “would render a subsequent decision jurisdictionally suspect”.83
Furthermore, Priestley J acknowledged that a child’s views are not determinative of the outcome, as they may conflict with the judge’s assessment of what is in the child’s welfare and best interests.84 Significantly, Priestley J stated that:85
Human beings are frequently not the best arbiters of their own best interests. Children, who have yet to develop to adulthood and are so frequently the casualties of parental conflict, are no exception to that truism.
Therefore, while it is vital that a child is listened to and taken seriously, the realities of the circumstances must be considered when taking their views into account. This is consistent with the current understanding of s 6, which is that children have a “voice not a choice”, and their views are not determinative of the outcome. However, Professor Bill Atkin has argued that
78 Henaghan, above n 77, at 154.
79 Henaghan, above n 77, at 154.
80 Mark Henaghan Principles under the Care of Children Act 2004 (online ed, LexisNexis) at [6.105C].
81 Henaghan, above n 81, at 154.
82 Brown v Argyll [2006] NZFLR 705 (HC).
83 Brown v Argyll, above n 82, at [44] and [45].
84 At [49].
85 At [49].
because of this, s 6 allows judges to merely “pay lip-service” to the child’s views, ignoring them in the outcome.86 Based on this, Atkin has asserted that COCA is still an “adult-focused” piece of legislation.87
HC v PS [2006]: Following Henaghan’s criticisms, and Brown v Argyll, the Court of Appeal considered HC v PS, which involved an application for leave to appeal against the outcome of C v S.88 Here, the Court held that, in reality, a rehearing would have been costly, caused further harm to the parties, and likely have adversely affected the child.89 The Court therefore dismissed the appeal, holding that a rehearing will not always be the best way of providing redress to the child for a breach of s 6.90 Ultimately, this decision acknowledges that failure to follow s 6 will not automatically render a decision void or ultra vires.
Henaghan was critical of the disappointing conclusion to this appeal, raising the question of how a court is able to determine that the views of a child are immaterial if the court has not heard that child’s views.91 Henaghan argued that continuing to use the factors of age and maturity to dismiss young children contradicts research evidence that “children shape and understand their worlds in unique ways from an extremely early age”.92 Therefore, expectations that a child’s views would not be material fails to “provide scaffolding for a child from which to build their own world”.93
Stephen Coyle, when writing as a legal practitioner, argued that an approach that still uses the age and maturity of the child to “filter” their views contradicts “a sociology of childhood perspective”, which “demands nothing less than the views of children being considered on an equal basis with those of their parents”.94 This means that while a judge is still able to decide not to follow the views of the child, they should do so in the same way they decide not to follow
86 Henaghan and Ballantyne, above n 41, at 591 and 593.
87 Atkin, above n 45, at 479.
88 HC v PS CA115/06, 18 October 2006 at [1].
89 At [6].
90 At [6].
91 Henaghan and Ballantyne, above n 41, at 594
92 Henaghan, above n 34, at 541.
93 Henaghan, above n 34, 544.
94 Coyle, above n 25, at 259.
the views of a party to the decision, upon being presented with all of the evidence.95 This will best uphold the child’s right to participate, and ensure that s 6 is implemented as Parliament intended.
Criticisms of the use of a child’s age and maturity to determine the weight to be afforded to their views have continued since these initial cases. In 2018, Professor Kay Tisdall maintained that using concepts such as maturity is still a current trend in case law, resulting in a “competence bias” against children, where a child’s views are given more weight if they are “rational, autonomous, and stable”.96 This means that if a child presents as “anxious, ambiguous, unable to balance factors and unduly influenced”, they are not seen as competent, resulting in little weight being attached to their views.97 This risks a failure to appreciate that even very young children can have “highly informed views”, and that children are capable of having such views if they receive the proper support from adults.98 Not only this, but age is still used “as a shorthand to deny children’s capacity and their competence to participate”.99 Ultimately, Tisdall asserts that instead of assessing whether the views of children should be “discounted on the grounds of competence”, the focus should be on providing children with the necessary information to participate, and supporting children to develop and express their views.100
IV. Summary
The analysis of these early cases on the application of s 6, and the subsequent criticisms, highlights the necessity of ascertaining the child’s views. Most importantly, the analysis stresses that, in accordance with the wording of s 6, the child’s age and maturity should not be used as a means of dismissing the child. Instead, the child should be appropriately supported to express their views.
95 Coyle, above n 25, at 259.
96 Kay Tisdall “Challenging competency and capacity? Due weight to children’s views in family law proceedings” (2018) 26(1) International Journal of Children’s Rights 159 at 173.
97 Tisdall, above n 96, at 174.
98 Tisdall, above n 96, at 176 and 177.
99 Tisdall, above n 96, at 170.
100 Tisdall, above n 96, at 177.
In terms of disputes between guardians over whether, or not, their child should receive the COVID-19 vaccinations, this chapter emphasises that children should be respected, and that their views on these forms of treatment should not be dismissed based on their age and maturity. Rather, children should be provided with information about COVID-19 and the vaccinations, and supported in developing and expressing their views on this matter. This will, in turn, ensure that they are taken seriously, as the person who will ultimately have to receive, or not receive, the vaccinations.
Chapter Three: The Child’s Right to Participate in the Context of COVID- 19 Vaccinations
I. Introduction
The recent COVID-19 pandemic prompted a new line of disputes between guardians regarding whether, or not, their child(ren) should receive the recommended vaccinations. No previous legal analysis has been undertaken of the judgments that resulted from the New Zealand Family and High Courts during this unprecedented period in our history.
This chapter analyses 14 New Zealand court judgments on this topic, involving 21 children aged 5 – 16, which are all the cases available as at 6 October 2023.101 It compares these cases with nine Australian court judgments on this matter, involving 12 children, aged between 5 –
The question of whether, or not, the judge considered the child’s age and maturity is an important one, as it seeks to understand how judges are assessing the weight to be afforded to the child’s views and, in turn, if they are appropriately upholding the child’s right to participate. This research question explores the following five criteria:
101 This includes cases up until the 20th October 2022.
The research question assessing what, if any, external factors were considered by the judges explores two further criteria:
An analysis of the use of Ministry of Health guidelines provides an insight into the information judges relied upon to determine what course of medical treatment was in the child’s welfare and best interests. Furthermore, judges who considered the risk of community infection demonstrated an appreciation of the wider context of the global pandemic within which these decisions were being made.
II. Sample Overview
This section provides a summary of the 14 cases. It sets out the families involved in the disputes, and provides an insight into whether, and how, the child’s views were ascertained and assessed by the court.
Table 1 (overleaf) sets out the family members involved in the disputes. The cases are listed chronologically and involve 5 teenage children and 16 children aged 5 – 16 years, in 12 different courts spread throughout the country. All but one of these decisions occurred in the Family Court, with six mothers and eight fathers opposing their child(ren)’s vaccination. Importantly, the parent opposing vaccination often emphasised that they were not taking a broader “anti-vaxx” position, but instead raised concerns about the extent of the research conducted into the efficacy and safety of the COVID-19 vaccines.102
102 See, for example, Watkins v Watkins [2021] NZFC 11934 at [9]; and Pryor v Everett [2022] NZFC 4568 at [8] – [10].
Table 1: The family members involved in the New Zealand court disputes
|
Judge
|
Court and Location
|
Parent against vaccination
|
Child(ren)’s name(s)
|
Child(ren)’s age(s)
|
|
|
Watkins v Watkins
|
Judge Grace
|
Family Court at
Porirua
|
Mother
|
Summer and George
|
12 and 14
|
|
Gour v Moss
|
Judge Parsons
|
Family
Court at Waitākere
|
Mother
|
Arvind
|
13
|
|
Long v Steine
|
Judge Coyle
|
Family
Court at Whakatāne
|
Father
|
Charlie
|
12
|
|
Lovell v Metcalf
|
Judge McKenzie
|
Family
Court at Christchurch
|
Father
|
Nanui
|
12-15 (not
explicitly stated)
|
|
Holloway v Parsons
|
Judge Flatley
|
Family Court at Dunedin
|
Father
|
Ivan
|
12
|
|
Pearce v Bird
|
Judge Greig
|
Family Court at New
Plymouth
|
Father
|
Luke, Logan and Elise
|
8, 11 and 12
|
|
Cooper v Bruce
|
Judge Fleming
|
Family Court at Auckland
|
Mother
|
Trudy
|
12
|
|
Open Home
Foundation v Butler
|
Judge McLeod
|
Family
Court at Masterton
|
Mother
|
Kathleen
|
9½
|
|
Chadwick v Walton
|
Judge McLeod
|
Family Court at
Masterton |
Father
|
Jacob and Anna
|
12 and 14
|
|
Hartley v Wood
|
Judge Ginnen
|
Family Court at Pukekohe
|
Father
|
Kyle
|
5
|
|
Townsend v Poole
|
Judge Collin
|
Family Court at
Hamilton
|
Mother
|
Elliot and Cerys
|
8 and 9
|
|
Cantrell v Cantrell
|
Judge Grimes
|
Family Court at Hamilton
|
Father
|
Maisy, Tyler and Rhys
|
12, 14 and
16
|
|
Pryor v Everett
|
Judge Shearer
|
Family
Court at Ashburton
|
Mother
|
Phoebe
|
6
|
|
Baker v Lawrence
|
Justice Isac
|
High Court at Nelson
|
Father
|
Names of the
two children not provided
|
Over 5
|
Table 2 provides an overview of how, and whether, the child(ren)’s views were ascertained during the court proceedings. The child(ren) met with the judge in four cases and, in 11 cases, the child(ren) met with a lawyer for the child. In three cases, the child(ren) met with both a lawyer for the child and the judge. In seven cases, the judge considered Gillick competency as part of their assessment of the child(ren)’s views.
Table 2: Ascertaining the views of the child
|
Was there a judicial meeting?
|
Did the child(ren) meet with a lawyer for the
child?
|
Did the judge consider whether the child(ren) were
Gillick
competent?
|
Did the child(ren) want to receive the
vaccination?
|
Vaccination ordered
|
|
|
Watkins v Watkins
|
Yes
|
Yes
|
No
|
No
|
Yes
|
|
Gour v Moss
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Long v Steine
|
Yes
|
Yes
|
Yes
|
No
|
No
|
|
Lovell v Metcalf
|
No
|
Yes
|
No
|
Yes
|
Yes
|
|
Holloway v Parsons
|
Yes
|
Not stated
|
No
|
Wants to wait until he is between the ages of
12 and 13.
|
Yes
|
|
Pearce v Bird
|
Not stated
|
Not stated
|
No
|
Children’s views not provided.
|
Yes
|
|
Cooper v Bruce
|
Not stated
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Open Home
Foundation v Butler
|
No
|
Yes
|
No
|
Yes
|
Yes
|
|
Chadwick v Walton
|
Not stated
|
Yes
|
Yes
|
Yes
|
The mother was given full authority to make the decision
about vaccination.
This is because if the children
changed their
|
|
|
|
|
|
|
mind about vaccination, they would not be forced to
receive
it.103
|
|
Hartley v Wood
|
No
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Townsend v Poole
|
No
|
Yes
|
Yes
|
No
|
Yes
|
|
Cantrell v
Cantrell
|
Yes
|
Yes
|
Yes
|
Yes
|
Yes
|
|
Pryor v Everett
|
No
|
Yes
|
No
|
No
|
Yes
|
|
Baker v Lawrence
|
Not stated
|
A lawyer for the child was appointed, but it is unclear
whether they met with the
children
|
No
|
Children’s views not provided
|
Yes
|
Ten children (in seven cases) expressed that they wanted to receive the COVID-19 vaccination, and the final decision aligned with this. Seven children (in five cases) did not want to receive the vaccination. However, it was only in one of these cases - Long v Steine - that the judge did not order vaccination. This case is the first and only decision in the New Zealand courts where the judge ordered that the child, Charlie aged 12, should not receive the vaccination, in accordance with the child’s own views.
Overall, these cases provide a unique insight into how judges are applying s 6, given the wider context of the COVID-19 pandemic. This analysis, driven by my two research questions, examines whether judges are appropriately upholding the right of the child to participate in matters that affect them in these unprecedented pandemic circumstances.
103 Chadwick v Walton [2022] NZFC 2045 at [19].
III. Have the judges taken the child(ren)’s age and maturity into account in determining the weight to be afforded to the child’s views, and if so, how?
This research question assesses whether, and how, the judges have taken the child’s age and maturity into account in determining the weight to be afforded to the child’s views. This consideration allows for an analysis of whether judges are using the child’s age and maturity as filters for dismissing the child and their views. An approach that relies on such filters can lead to an “age” and “stage” approach, determining the child’s competence based on false perceptions of standard developmental paths for children.104 Assessing a child’s views in this framework can result in a court failing to properly understand the importance of supporting the child in expressing their views.105
The word “maturity” is often used in place of words such as competence and capacity, and many cases lack clear definitions for these terms.106 When assessing the ability of the child to make decisions for themselves, especially in a medical context, judges and academics regularly use words such as “maturity, “competency”, “capacity” and “understanding” interchangeably.107 Often, a child will be found to have sufficient maturity when their views are considered to be “rational, autonomous and stable”.108 This can lead to a “competence bias” in decision making, which fails to understand that the child’s ability to express views is situational and relational.109
In three cases, involving six children, the judge used the children’s age and maturity to determine that their views should be given significant weight in the proceedings. In Chadwick
104 Tisdall, above n 96, at 175.
105 Tisdall, above n 96, at 166.
106 Tisdall, above n 96, at 162.
107 Tisdall, above n 96, at 162.
108 Tisdall, above n 96, at 173.
109 Tisdall, above n 96, at 174.
v Walton, Jacob and Anna (aged 12 and 14 years) informed their lawyer for the child that they wanted to receive the COVID-19 vaccination.110 Judge McLeod ordered vaccination “predominantly because of the views that they have expressed”.111 Age was the most significant factor for the Judge, who held that if the children had been younger, “there would have been more consideration around what might be in their interests and welfare”.112 A similar emphasis on the older ages of the children occurred in Cantrell v Cantrell, where Maisy, Tyler and Rhys (aged 12, 14 and 16 years) expressed that they wanted to receive the COVID-19 vaccination.113 Judge Grimes held that the older ages of the children meant that their parents now have the role of advisors for their children, as opposed to making decisions for them.114 This led to the Judge placing “considerable weight” on the children’s views.115 Furthermore, in Long v Steine, Charlie’s older age of 12 years partially influenced Judge Coyle’s determination that significant weight should be placed on Charlies’ view that he did not want to receive the vaccination.116
Judge McLeod in Chadwick v Walton also indirectly considered the children’s maturity. She held that the children understood that not having the vaccine would have a direct impact on their ability to participate in everyday activities, and that they had had the opportunity to “consider the vaccination from all different perspectives”.117 Furthermore, Judge Grimes in Cantrell v Cantrell held that while Rhys had autism, he understood the purpose of the vaccination.118 In regards to Maisy and Tyler, she found that they were “articulate and intelligent”, and able to make informed decisions about vaccination.119 Judge Grimes determined that this meant they had sufficient maturity and understanding to be able to consent to receiving the vaccination.120 Similarly, Judge Coyle’s determination in Long v Steine that Charlie is a “good, sensible and intelligent young man” with “a particular scientific bent” in his reasoning, led him to conclude that the combination of Charlie’s age and maturity meant that he should not be forced to receive the vaccination against his will.121
110 Chadwick v Walton, above n 103, at [11] and [16].
111 At [18].
112 At [18].
113 Cantrell v Cantrell [2022] NZFC 325 at [4].
114 At [32]; and Care of Children Act, s 16
115 At [36].
116 Long v Steine, above n 18, at [10].
117 Chadwick v Walton, above n 103, at [11] and [12].
118 Cantrell v Cantrell, above n 113, at [23].
119 At [35].
120 At [35].
121 Long v Steine, above n 18, at [23] and [48].
It is evident in these cases that the judges each placed significant emphasis on the children’s older ages, and their ability to express their views rationally and cogently. This led to the judges affording significant weight to the children’s views, resulting in a positive realisation of their right to participate.
However, in three further cases involving four children aged between 5 – 9 years, age and maturity were significant factors for the judge in determining that the children’s views should have little or no weight. Judge Collin in Townsend v Poole noted that although s 6 does not contain any age restrictions, the child’s age is relevant in determining how much weight should be afforded to their views.122 He held that this is because a child’s age and maturity affects “their capacity to understand the issues”.123 In this case, Elliot and Cerys (aged 8 and 9) expressed that they did not want to receive the COVID-19 vaccinations.124 However, Judge Collin determined that the children behaved as “normal children” of their age, concluding that their views were not strongly held, nor were they expressed with an understanding of the consequences of vaccination.125 This led to the Judge placing little weight on the children’s views, and ordering vaccination.126 Similar reasoning in Pryor v Everett resulted in Judge Shearer concluding that Phoebe (aged six) should receive the vaccination.127 The Judge held that although the child had expressed that she did not want a “poke”, at the age of six, she was “too young to understand or decide about being vaccinated against COVID-19”.128 Furthermore, a strong emphasis on age and maturity in Hartley v Wood resulted in the views of Kyle (aged 5), not being ascertained. Here, Judge Ginnen agreed with the lawyer for the child’s assessment that Kyle was “too young to understand and express a view on vaccination”.129
These cases demonstrate how the use of age and maturity to assess a young child’s ability to express views, as well as the weight to be afforded to these views, can significantly impact on the child’s right to participate. The strong emphasis placed on the younger ages of the children,
122 Townsend v Poole [2022] NZFC 2773 at [8] and [10].
123 At [10].
124 At [22].
125 At [22] and [68].
126 At [22].
127 Pryor v Everett, above n 102, at [31].
128 At [15].
129 Hartley v Wood [2022] NZFC 1708 at [7].
and their apparent lack of understanding of the consequences of vaccination, caused the children and their views to be dismissed. This is despite the fact that these children, with the appropriate support and information, may have been able to provide the judge with valuable information about what is in their overall welfare and best interests, even if their views were not determinative.
In two cases involving two children, age was considered by the judge, but maturity was not. In Gour v Moss, Arvind (aged 13) expressed that he wanted to receive the vaccination. Here, Judge Parsons noted that there is a “sliding scale of autonomy that is provided and observed with children the closer they get to 18 years of age”, and that “the closer a young person is to turning 16 and beyond, the more weight that has to be placed on their views”.130 The Judge concluded that given Arvind was only four years away from the age of 18, his views needed to be considered, and vaccination was ordered.131 This reasoning uses age as the leading factor to determine the weight to be afforded to the child’s views. While this approach does not necessarily hinder the participation of older children, it is problematic when applied to younger children, as it suggests that the child’s ability to express views increases chronologically with age. This issue is demonstrated in Open Home Foundation v Butler, where Kathleen (aged 9), expressed that she wanted to receive the vaccination.132 The Judge concluded that the child ought to receive the vaccination, holding that the child’s views had been taken into account, but that if she had opposed vaccination, this would not have changed the outcome.133 This approach uses the child’s young age to dismiss the child, ignoring that she may have been able to make a meaningful contribution to the understanding of the judge about what is in her welfare and best interests if she had opposed vaccination.
130 Gour v Moss [2021] NZFC 12883 at [18] and [19].
131 At [19].
132 Open Home Foundation v Butler [2022] NZFC 1820 at [31].
133 At [44].
In three cases, involving four children, maturity was considered, but the age of the child was not. In Cooper v Bruce, Judge Fleming held that Trudy (aged 12), was “mature” and “thoughtful”, concluding that her views she would like to receive the COVID-19 vaccinations were “consistent, cogent and rational”, and ought to be given significant weight.134 In Watkins v Watkins, Judge Grace placed similar emphasis on the maturity of Summer and George (aged 12 and 14), who expressed that they did not want to receive the vaccinations.135 The Judge determined that the children were “articulate”, and seemed “quite capable of expressing themselves and the reasoning behind their expressions”.136 However, although both children indicated that they had carried out their own research about receiving the vaccination, they could not tell the Judge about the research they had done.137 This led to the Judge ordering vaccination.138 In these two cases, the judges assessed the weight to be afforded to the children’s views based on their understanding of the matter at hand, the strength behind their views, and their ability to express these views articulately and rationally.
A slightly different approach was taken in Holloway v Parsons, where Ivan (aged 12) informed Judge Flatley that he wanted to wait until he is between 12 and 13 years old before he receives the vaccination.139 Judge Flatley did not refer to Ivan’s age, but considered that Ivan could explain to the Judge how the COVID-19 vaccinations worked, and appreciated the consequences of not receiving the vaccination.140 However, Ivan was not able to tell the Judge why he wanted to wait to receive the vaccination, leading the Judge to conclude that Ivan was not opposed to vaccination, and that his views were a response to the parental conflict.141 Based on this, the Judge concluded that Ivan should receive the vaccination immediately.142 Judge Flatley’s emphasis on maturity is slightly different to what occurs in Cooper v Bruce and Watkins v Watkins, as the Judge solely engaged with Ivan’s understanding of the matter and the strength of his views, as opposed to his ability to express himself rationally and articulately.
134 Cooper v Bruce [2022] NZFC 1479 at [23]
135 Watkins v Watkins, above n 102, at [83]
136 At [42].
137 At [83].
138 At [90].
139 Holloway v Parsons [2022] NZFC 805 at [27].
140 At [25].
141 At [26], [27] and [32].
142 At [36].
In taking an approach that focuses on maturity alone, these judges sought to understand why the children held their views. This engagement with the child’s views ensures they are taken seriously, and allows the judge to understand what is important to the child.
In three cases, involving five children, the judge considered neither the child(ren)’s age nor maturity. In Lovell v Metcalf, Nanui (over the age of 12) expressed that he wanted to be vaccinated, informing the lawyer for the child that he wanted to be able to go to public places and participate fully in school.143 Judge McKenzie made no express reference to the child’s age and maturity, but rather considered his views alongside other evidence about the importance of vaccination, to conclude that Nanui should receive the vaccination.144 On the one hand, this approach follows the exact wording of s 6, and suggests that the views of the child may have been treated equally to the other evidence before the judge. However, as the judge does not engage with the child’s views, it is unclear how much weight was afforded to them. When such an approach is taken, this could risk giving rise to the concerns that Professor Bill Atkin expressed, with judges merely paying “lip-service” to the child’s views, without taking the child seriously.145
Two cases failed to take the children’s views into account. In Baker v Lawrence, Isac J made no mention of s 6, or the children’s views, and instead relied solely on the Ministry of Health’s advice to determine that it was in the children’s welfare and best interests to receive the vaccination.146 In Pearce v Bird, Judge Greig held that the “wishes” of Logan, and Luke (aged 8 and 11), needed to be given appropriate weight in accordance with their age.147 However, the Judge did not go on to acknowledge if the children expressed any views. Furthermore, the use of the term “wishes”, and “in accordance with their age”, suggests that Judge Greig drew on the outdated approach from the Guardianship Act to reach a conclusion about how much weight to afford any views the children may have expressed. These cases demonstrate a poor realisation of the right of the child to participate.
143Lovell v Metcalf [2022] NZFC 715 at [15].
144 At [19] and [22].
145 Henaghan and Ballantyne, above n 41, at 593.
146 Baker v Lawrence [2022] NZHC 2734 at [7].
147 Pearce v Bird [2022] NZFC 1042 at [19].
In seven cases, the judge went further than discussing the child’s age and maturity, and considered the issue of Gillick competency. In two of these cases, Cooper v Bruce and Gour v Moss, the judge merely acknowledged the Gillick competency test, but did not expressly assess the children in relation to it.148
In two other cases, the judge did not deem the children to be Gillick competent. In Townsend v Poole, Judge Collin held that because there had not been any previous cases where children as young as nine had been deemed Gillick competent, the children in the present case could not be either.149 Similarly, in Hartley v Wood, Judge Ginnen held that Kyle, at five years old, was too young to be Gillick competent.150 These cases approach Gillick competency based on the child’s age, which undermines the purpose of assessing whether, or not, a child is Gillick competent. This is because the test was designed to separate the child’s understanding of the circumstances from their age.
In three cases, the judge deemed the children to be Gillick competent, resulting in the judge making a decision that aligned with the children’s views. In Chadwick v Walton, Judge McLeod deemed Anna (aged 14) Gillick competent, concluding that she had reached an age where she did not need her parents’ consent to receive the vaccination.151 Judge McLeod therefore ordered that the mother had full authority to decide whether the children will be vaccinated, as opposed to ordering vaccination directly.152 This allowed the children the option of changing their minds, avoiding them being forced to receive the vaccinations if they did so.153 Judge Grimes applied similar reasoning in Cantrell v Cantrell in relation to Tyler and Maisy (aged 12 and 14,), holding that the children’s parents now had the role of advisors, and were no longer there to decide matters for them.154
148 Cooper v Bruce, above n 134, at [23]; and Gour v Moss, above n 130, at [18].
149 Townsend v Poole, above n 122, at [13].
150 Hartley v Wood, above n 129, at [9].
151 Chadwick v Walton, above n 103, at [17].
152 At [19].
153 At [19].
154 Cantrell v Cantrell, above n 113, at [32] and [35].
The only case where the judge deemed a child who opposed the COVID-19 vaccinations to be Gillick competent was Long v Steine. Judge Coyle stated that Charlie (aged 12) “should not be compelled to have a COVID-19 vaccination against his wishes”.155 Significant engagement with Charlie allowed the Judge to assess that he had a great understanding of COVID-19, and the consequences of not receiving the vaccination. A lawyer for the child met with Charlie twice, and Charlie expressed clearly that he did not want to receive the COVID-19 vaccination.156 The lawyer for the child provided Charlie with information about the vaccination, which Charlie used to make a “pros and cons” list, and from which he concluded that he still did not want the vaccination.157 This case is an example of the child being provided with support and information, to enable them to express an informed and insightful view. Charlie also met with Judge Coyle, and provided him with several reasons as to why he did not want to receive the COVID-19 vaccination, including religious objections, and concerns about the vaccine’s effectiveness.158 Charlie identified the consequences of not being vaccinated, including that he would not be able to participate in extracurricular activities, or go to some public places.159 Furthermore, of great significance in Judge Coyle’s decision, was Charlie’s view that if he was ordered to receive the vaccination, he would refuse to have it at the clinic.160 Judge Coyle acknowledged that Charlie’s refusal meant that a health professional would be unlikely to hold him down and force him to be vaccinated without his consent.161
The nature of COVID-19 also influenced Judge Coyle’s determination that Charlie was able to consent to receiving, or not receiving, the vaccination himself. Judge Coyle specifically considered the circumstances in District Health Board v Dee,162 where the child (John, aged
14) said that he wanted to stop his HIV treatment.163 In that case, the judge concluded that John’s views should be overridden, as he did not understand the fatal consequences of stopping treatment.164 It was argued in Long v Steine that this same approach should be followed with regard to Charlie; however, Judge Coyle distinguished the two cases, stating that “if treatment was not continued for John, then he would have potentially died. In this case, if [Charlie] is not
155 Long v Stein, above n 18, at [50].
156 Long v Steine, above n 18, at [11].
157 At [11].
158 At [12].
159 At [14].
160 At [15].
161 At [51].
162 A District Health Board v Dee [2015] NZHC 304
163 Long v Steine, above n 18, at [26].
164 At [26].
vaccinated it is not inevitable that he will die”.165 In support of this, Judge Coyle cited UNICEF’s report that only 0.4 per cent of total deaths from COVID-19 have occurred in children.166 Judge Coyle acknowledged that, while COVID-19 has been harmful for children, there is more room to give significant weight to the child’s views in these disputes, than there is for other more serious medical care decisions. Long v Steine is therefore a key decision in demonstrating how it is possible to prioritise the child’s views of not wanting to receive the COVID-19 vaccinations, and for that decision to be in the welfare and best interests of the child.
IV. What, if any, external factors have judges considered as part of the overall evidence, to determine whether, or not, the child(ren) ought to receive the vaccinations?
Analysing the use of external information by judges throughout these cases provides a significant insight into what the courts view as important evidence in these particular disputes. This is because the weight afforded to the child’s views must reflect their overall welfare and best interests, meaning that the child’s views are just one component of the evidence a judge needs to consider.
This criterion recognises that judges are not scientists, and perhaps may not be in a position to be making decisions about whether, or not, vaccination against COVID-19 is in a child’s welfare and best interests. This has led to many judges in these disputes drawing on external information from widely accredited sources, such as the Ministry of Health. Nearly all (13) of the cases referred to some form of advice or policy statement provided by the Ministry of Health for COVID-19 vaccinations.
In 11 cases, the information from the Ministry of Health about the benefits of the vaccinations, particularly as set out in the recommended immunisation schedules for children, was used as strong evidence for determining that it is in the child’s overall welfare and best interests to
165 At [26].
166 At [29]
receive the vaccination. In Gour v Moss, the judge cited Stone v Reader,167 where it was held that the recommendations of New Zealand Health Authorities, in accordance with the Ministry of Health Schedules, is the best evidence before the court.168 This demonstrates that the courts have been using Ministry of Health recommendations as the best evidence available for determining what is in the child’s welfare and best interests prior to disputes over COVID-19 vaccinations. This approach was supported by Judge Grimes in Cantrell v Cantrell, who acknowledged that information from the Ministry of Health is “the best evidence this court has” for immunisation decisions.169
Several cases demonstrate a significant reliance on Ministry of Health recommendations. In Lovell v Metcalf, Holloway v Parsons, and Townsend v Poole, the judges acknowledged the government advice that young people between the ages of 5 – 12 should receive the COVID- 19 vaccinations.170 In Pryor v Everett, Judge Shearer emphasised the importance of this advice, stating that it is “irresponsible for the Court to do anything other than make directions which reflect mainstream medical advice and thinking”.171 Furthermore, in Watkins v Watkins, the Judge stated that “it is not for the Court to determine the correctness or otherwise of the directions given by the Director of Public Health and the government on the issue of vaccination”.172 This appreciates the limitations of the judiciary in assessing the efficacy of vaccinations, and demonstrates a preference for following Government recommendations backed by leading scientific research. Importantly, in Hartley v Wood, Judge Ginnen acknowledged that judges have consistently followed Government advice in disputes over the vaccination of children against COVID-19, given that the Ministry of Health, “has available to it a wealth of expert medical advice, and is far better positioned than the judge is to assess the safety of vaccines, and to make recommendations about their use”.173 These cases demonstrate that the Ministry of Health’s COVID-19 guidelines were crucial evidence for judges in reaching a decision that is in the child’s welfare and best interests. This is particularly emphasised in Baker v Lawrence, where the Ministry of Health advice was essentially the sole determiner of Isac J’s decision.174
167 Stone v Reader [2016] NZFC 6130.
168 Gour v Moss, above n 130, at [20].
169 Cantrell v Cantrell, above n 113, at [35].
170 Lovell v Metcalf, above n 143, at [18]; Holloway v Parsons, above n 139, at [16]; and Townsend v Poole,
above n 122, at [43]-[47].
171 Pryor v Everett, above n 102, at [21].
172 Watkins v Watkins, above n 102, at [88].
173 Hartley v Wood, above n 129, at [13].
174 Baker v Lawrence, above n 146, at [23].
In comparison to these cases, two other cases referred instead to the Ministry of Health’s COVID-19 Vaccine Informed Consent for Young People aged 12 to 15 Years policy statement. This statement provides that healthcare workers should recognise that children aged between 12 – 15 years “have the right to give informed consent for the vaccination where competent to do so”.175 In Long v Steine, Judge Coyle referred to this policy statement, and determined that based on this policy, Charlie had reached an age where his views about vaccination needed to be given significant weight.176 Importantly, Judge Coyle acknowledged that just because the views Charlie expressed were not “mainstream” did not mean that they were not well informed, and that they could not be given weight in accordance with this policy.177 Similarly, in Chadwick v Walton, the judge referred to this policy, and determined that the children, at the ages of 12 and 14, are able to give their own consent to vaccination.178
These cases emphasise that the courts are using different evidence and policy statements to frame the child’s right to participation. However, the use of the policy statement referred to in Long v Steine and Chadwick v Walton determines the ability of a child to consent by reference to their age. This could risk creating an assumption that younger children would lack sufficient understanding of the vaccinations, such that their views could not meaningfully help determine what is in their welfare and best interests.
The second criterion for this research question seeks to understand the impact of the wider context of COVID-19 on how judges approached these disputes. The context of the global pandemic meant that the judges were making these decisions with an awareness that receiving the vaccination not only reduces the risks of COVID-19 to the individual, but also the likelihood of that individual passing the virus on to someone else. Furthermore, an awareness of the Government’s efforts to achieve mass vaccination meant that ordering a child to not
175 Ministry of Health Informed Consent for Young People Aged 12-15 Years Policy Statement: COVID-19 Vaccine and Immunisation Programme (August 2021) at 6.
176 Long v Steine, above n 18, at [48].
177 At [30].
178 Chadwick v Walton, above n 103, at [13].
receive the vaccinations had the broader consequence of impacting on the goal of nation-wide immunisation.
Some judges highlighted the effect on the child’s family if the child did not receive the vaccination. This reflects the fact that the child lives as part of a family group. In Holloway v Parsons, for example, the Judge held that it would be in the child’s welfare and best interests to receive the vaccination, partially because this meant that “he will not put his mother or grandparents or any other family member at risk”.179 Additionally, in Open Home Foundation v Butler, the child’s caregivers and their family were immunocompromised.180 While the Judge held that the final decision needs to reflect what is in the child’s best interests, and not the best interests of the caregivers, the reality is that the child “does not live in isolation”.181 Therefore, the child’s “living circumstances are inextricably linked to those of her caregivers”, and it would not be in the child’s welfare and best interests to have her placement disrupted based on the health of her caregivers.182 The Judge thus concluded that any risks of disruption should be mitigated by the child receiving the COVID-19 vaccination.
However, some judges went even further, recognising the wider need to protect the public through immunisation. In Townsend v Poole, Judge Collin held that the views of the children “must be considered in the context of their welfare and best interests which includes their health and the health of others”.183 This situates the children within a community, where the children not receiving the vaccination could impact on the wider health of the public. Furthermore, in Watkins v Watkins and Pryor v Everett, it was held that one reason as to why vaccination should be ordered is to reduce the spread of the virus to “other members of the public”.184 However, in Hartley v Wood, Judge Ginnen rejected this approach, holding that the law requires judges to consider the child’s “individual welfare and best interests in his particular circumstances”.185 Therefore, the Judge stated that they “have not been guided by the greater public good, or the risk that [the child] might infect vulnerable members of the community” in making their decision.186 This demonstrates that judges have interpreted what comprises a child’s welfare
179 Holloway v Parsons, above n 139, at [34].
180 Open Home Foundation v Butler, above n 132, at [15].
181 At [28] and [36].
182 At [38].
183 Townsend v Poole, above n 122, at [68].
184 Pryor v Everett, above n 102, at [21]; and Watkins v Watkins, above n 102, at [88].
185 Hartley v Wood, above n 129, at [27].
186 At [27].
and best interests in different ways; however, the approach taken in Hartley v Wood ignores the fact that if the child’s community is impacted, this, in turn, could impact on the child’s own welfare and best interests.
The 14 cases have provided significant insight into both how judges are determining the weight to be afforded to the child’s views, and the importance of other external information in determining what is in the child’s welfare and best interests. This, in turn, highlights how the unprecedented circumstances of the COVID-19 pandemic has impacted on the right of the child to participate in matters that affect them. A discussion of similar disputes in the Australian context provides further comparative insight into how the courts upheld the right of the child to participate in immunisation decisions during the pandemic.
V. Australia
Several disputes between guardians over whether, or not, their child should receive the COVID-19 vaccinations also occurred in Australia during the pandemic. Australia had a similar vaccine rollout plan to New Zealand, with all children over the age of five now eligible for vaccination.187
In Australia, disputes between those who have parental responsibility for a child are dealt with under the Family Law Act 1975.188 Similarly to COCA, the Family Law Act provides that the child’s best interests are the paramount consideration in disputes between parents or guardians.189 In determining what is in the child’s best interests, the court must consider both
187 Australian Government, Department of Health and Aged Care “Who can get vaccinated” (31 May 2023)
<health.gov.au>.
188 Family Law Act 1975 (Cth).
189 Family Law Act, s 60CA.
the “primary considerations” listed in s 60CC(2), and “additional considerations” listed in s 60CC(3).190 As part of these additional considerations, the court must consider:191
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
This provision is different to s 6 of COCA, particularly as it expressly provides for maturity as a consideration when determining the weight to be afforded to the child’s views. This different statutory language may impact on how the right of the child to participate in disputes over whether, or not, the child should receive the COVID-19 vaccinations is upheld in Australia.
This section analyses nine Family and Federal Circuit Court of Australia cases involving disputes between guardians concerning whether, or not, their child(ren) should receive the COVID-19 vaccinations. These disputes involved 12 children, aged between 5 – 16 years, including cases up until 21 March 2023.
Table 3 (overleaf) provides a summary of these nine cases. The child’s views were only explicitly referred to by the judge in four cases. In three cases, the judge referred to the requirement to take into account the 60CC(3) additional considerations, but did not refer explicitly to any views the child may have expressed. In two cases, neither the child’s views, nor the additional considerations, were referred to by the judge. In three cases, the judge ordered that the child receive the vaccinations, and in six cases, ordered that the parent in support of vaccination had sole parental responsibility to determine whether the child should receive the vaccinations.
190 Family Law Act, ss 60CC(2) and (3).
191 Family Law Act, s 60CC(3)(a).
Table 3: Overview of Australian case law regarding disputes between parents re vaccination of their children against COVID-19
|
Child(ren)’s age(s).
|
Parent opposing vaccination
|
Child(rens)’s views expressly
referred to
|
Child(ren) wanted vaccination
|
Additional considerations generally
referred to
|
Judge’s order
|
|
|
Rusena and
Rusena
|
Five and seven
|
Mother
|
No
|
Not stated
|
Yes
|
Father has sole parental
responsibility
|
|
Cranston and Persson (No 2)
|
Nine and eleven
|
Father
|
Yes
|
Yes
|
Yes
|
Mother has sole parental responsibility
|
|
Trott and
Brenton
|
Twelve
|
Father
|
Yes
|
Uncertain
|
Yes
|
Orders
vaccination
|
|
Palange and Kalhoun
|
Ten
|
Father
|
No
|
Not stated
|
Yes
|
Orders vaccination
|
|
Saracuna and
Siddele (No 5)
|
Eight
|
Mother
|
No
|
Not stated
|
Yes
|
Father has sole parental responsibility
|
|
Karcher and
Lacoss
|
Eleven
|
Mother
|
No
|
Not stated
|
No
|
Father has sole parental
responsibility
|
|
McGown and
Brennan
|
Nine
|
Mother
|
Yes
|
Uncertain
|
Yes
|
Orders vaccination
|
|
Lamos and Radin (No 2)
|
Eleven and sixteen
|
Father
|
Eleven-year- old: No
Sixteen-year- old: Yes
|
Eleven- year-old: Not stated
Sixteen-
year-old: No
|
Yes
|
Father has sole parental responsibility, but subject to
sixteen-year- old’s consent.
|
|
Kafler and Magnan
|
Eleven
|
Father
|
No
|
Not stated
|
No
|
Mother has sole parental responsibility
|
In Palange and Kalhoun, the judge held that because neither of the parents had raised the issue of the child’s views, they did not need to be considered, as they did not impact on the case “as defined by the parties”.192 This implies that whether, or not, the child’s right to participate is upheld in these decisions is dependent on the parents or guardians raising the issue of the
192 Palange and Kalhoun [2022] FedCFamC2F 149 at [144] and [145].
child’s views. This is exemplified in Trott and Brenton, where the judge noted that not all the “additional considerations” will be relevant in every case, holding that “the parties may effectively dictate which s 60CC factors are relevant by the issues that are joined”.193 This reasoning led the judge to consider the views of the child, as they were perceived by the father, causing the judge to reach the conclusion that because the child had not expressed a clear view to her father, the child’s views were not “a relevant consideration”.194 This ignores the possibility that the child may have been hesitant in expressing their views to their father, given that the father did not want the child to receive the vaccination. Therefore, even in the cases where the child’s views were ascertained, the right of the child to participate was often weakly upheld, as it was filtered through the parents’ expression of the child’s views.
However, in Lamons and Radin, it was suggested to the judge, based on the mother’s evidence, that the 16-year-old child was opposed to vaccination.195 This led the judge to conclude that, given the child’s age, he is entitled to have his views taken into account.196 Therefore, the judge ordered that the father is authorised to have the child vaccinated, provided that the child consents.197 Similarly to Long v Steine, the judge stipulated that part of the reason for this decision was that it is unlikely that any health professional would give the child the vaccination without his cooperation.198
The Australian courts also placed a strong emphasis on the efficacy of vaccination in protecting the child(ren) and their communities from COVID-19. For example, in Rusena v Rusena, the court held that vaccination would support the welfare and best interests of the children, given that it will protect them from harm, and reduce the spread of the virus.199 Furthermore, the courts utilised the information provided by the Australian Federal Government and the World Health Organisation regarding the importance of vaccination. This is demonstrated in Kafler and Magnan, where the court relied strongly on the Australian Federal Government’s advice about the benefits of vaccination, as opposed to considering the child’s views.200 This demonstrates that, like New Zealand, the courts in Australia are aware of the external factors
193 Trott and Brenton [2022] FedCFamC1F 366 at [77].
194 Trott and Brenton, above n 193, at [110].
195 Lamos and Radin (No 2) [2022] FedCFamC2F 167 at [21].
196 At [21]
197 At [21]
198 Long v Steine, above n 18, at [51]; and Lamos and Radin (No 2), above n 195, at [22].
199 Rusena v Rusena [2022] FedCFamC2F 472 at [31].
200 Kafler and Magnan [2022] FedCFamC2F 198 at [19].
relevant to these COVID-19 disputes, and incorporated them to a great extent in determining what is in the child’s best interests.
Comparing the Australian cases with similar disputes in New Zealand, the right of the child to participate in the decision as to whether, or not, they receive the COVID-19 vaccinations was far more effectively upheld in the New Zealand case law. The children in the Australian disputes rarely had their views ascertained, and when they were, they were always included through evidence presented by their parents. This is very different to the New Zealand case law, where in all but two cases, the views of the child were ascertained by a lawyer for the child and/or the judge.
Furthermore, even if the child’s views were included in the decision in the Australian cases, the weight afforded to those views was assessed exclusively according to their age. When the judge in Trott and Brenton held the child’s views were not a “relevant consideration”, this was based entirely on her “young age” and the “complex medical issues involved” – despite the fact that the child was 12 years old.201 Furthermore, when the court was ascertaining the weight of the child’s views in Lamos and Radin (No 2), the court held that the child should be able to consent to the vaccination, exclusively because of his older age.202 This demonstrates that there was no engagement with the child’s understanding of the circumstances, like what was done in cases such as Long v Steine or Holloway v Parsons. Therefore, rather than ascertaining and understanding the child’s views, the Australian courts based their decisions largely on government recommendations, and what will best protect the child from COVID-19.
VI. Summary
The New Zealand cases dealing with disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations provide important insights into how judges are upholding the right of the child to participate in this unique context. Not only do
201 Trott and Brenton, above n 193, at [1] and [110].
202 Lamos and Radin (No 2), above n 195, at [21].
they demonstrate a wide range of approaches to assessing how much weight to afford to the child’s views, but they also provide a significant opportunity to consider how improvements to upholding the right of the child to participate in matters that affect them may be made.
In light of this, the next chapter considers the weaknesses of assessing the weight to be afforded to a child’s views on receiving, or not receiving, the COVID-19 vaccinations based on their age and maturity. It also suggests a new approach to child participation in these disputes, recommending that children ought to be supported in the expression of their views.
Chapter Four: Discussion and a Recommendation
I. Introduction
Robyn Fitzgerald has aptly stated that beliefs about children experiencing a universal pathway of development continue to be “uncritically absorbed into judicial pronouncements concerning how children are to be heard in legal proceedings”.203 This is based on the perception that children are “irrational”, with rationality representing “the universal hallmark of adulthood”.204 This is despite the fact that the rational person is defined as “one which avoids all mistakes deriving from inadequate reflection”, which is a standard that “many adults would be found wanting if their actions were evaluated against”.205 Holding children to such standards, that even many adults struggle to meet, serves to highlight the arbitrary nature of using age and maturity to determine the weight to be afforded to the child’s views.
II. Discussion
The analysis of the 14 New Zealand cases involving disputes between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations highlights a range of different uses of the “age and maturity” criteria, as evidenced by Table 4 (overleaf). This is despite the fact the age and maturity considerations were explicitly removed in s 6. Overall, the language that these considerations invoke, and the fact that they often introduce an “age” and “stage” approach to child participation means that, while the views of older children are given significant weight in the proceedings, those of younger children are often dismissed.
203 Robyn Fitzgerald “How are children heard in family law proceedings in Australia?” [2002] SCULawRw 7; (2002) 6 Southern Cross University Law Review 177 at 192.
204 Fitzgerald, above n 203, at 193
205 Fitzgerald, above n 203, at 193.
Table 4: Summary of New Zealand Case Law Findings: Age and Maturity
|
Both age and maturity
|
Age alone
|
Maturity alone
|
Neither age nor maturity
|
Child deemed Gillick
competent
|
|
|
Watkins v Watkins
|
-
|
-
|
Yes
|
-
|
Not considered
|
|
Gour v Moss
|
-
|
Yes
|
-
|
-
|
No
|
|
Long v Steine
|
Yes
|
-
|
-
|
-
|
Yes
|
|
Lovell v
Metcalf
|
-
|
-
|
-
|
Yes
|
Not
considered
|
|
Holloway v Parsons
|
-
|
-
|
Yes
|
-
|
Not considered
|
|
Pearce v Bird
|
-
|
-
|
-
|
Yes
|
Not considered
|
|
Cooper v
Bruce
|
-
|
-
|
Yes
|
-
|
No
|
|
Open Home
Foundation v Butler
|
-
|
Yes
|
-
|
-
|
Not considered
|
|
Chadwick v
Walton
|
Yes
|
-
|
-
|
-
|
Yes
|
|
Hartley v Wood
|
Yes
|
-
|
-
|
-
|
No
|
|
Townsend v Poole
|
Yes
|
-
|
-
|
-
|
No
|
|
Cantrell v
Cantrell
|
Yes
|
-
|
-
|
-
|
Yes
|
|
Pryor v Everett
|
Yes
|
-
|
-
|
-
|
Not considered
|
|
Baker v
Lawrence
|
-
|
-
|
-
|
Yes
|
Not
considered
|
In the cases that applied both the age and maturity criteria to children between the ages of 12
– 16, the judges determined that the children’s views should be afforded significant weight. While this had a positive impact on the rights of those children involved to express their views, the children’s rationality and articulation were greatly emphasised. This language employed in these cases involving older children creates a belief that younger children, because of their age, or their inability to express their views rationally and cogently, should not have significant weight afforded to their views. This is demonstrated by the cases that used age and maturity to determine that, because of the younger ages of the children involved, and their apparent lack of understanding of the COVID-19 vaccinations, little to no weight should be attached to their
views. This approach rejects the views of younger or more uncertain children, despite the fact that the expression of views is entirely dependent on the context in which that expression occurs. Providing the children with support, scaffolding, and further information about the vaccinations may have allowed the children to provide the judge with valuable information about what is in their overall welfare and best interests, even if their views were not determinative of the outcome. This is because even very young children, when provided with information about their medical care, and sufficient assistance in expressing their views, are able to develop a relatively complex understanding of the issues involved and how it affects them.206 These cases therefore demonstrate how using age and maturity to assess the weight to be afforded to the child’s views can severely diminish the right of the child to participate in matters that affect them.
Similar effects can be observed in Cooper v Bruce and Watkins v Watkins, where the judges solely referred to the child’s maturity, and placed significant weight on the rationality and understanding of the children involved. However, Holloway v Parsons is one example that uses the concept of maturity in a way that could apply more effectively to younger children, or children who express their views in a more anxious or uncertain manner. This is because the Judge did not assess the child’s ability to competently express his views, but instead focussed on the understanding of the child, and why it was important for the child to wait to receive the vaccination. This case provides an example of how the language and methods used to assess the views of an older child can be employed in a way that would still uphold the right of the child to participate, even when applied to younger children.
Table 5 (overleaf) provides an overview of how external information was considered by the judges.
206 Katy Sutcliffe, Ruby Sutcliffe and Priscilla Anderson “Can very young children share in their diabetes care? Ruby’s story” (2004) 16 Paediatric Nursing 24 at 24 and 26.
Table 5: Summary of New Zealand Case Law Findings: External Information Considered
|
Ministry of Health Guidelines and Recommended
Immunisation Schedule
|
Ministry of Health’s COVID- 19 Vaccine Informed
Consent for Young People aged 12 to 15 Years
policy statement
|
Risk of Community Infection
|
|
|
Watkins v Watkins
|
Yes
|
-
|
Yes
|
|
Gour v Moss
|
Yes
|
-
|
-
|
|
Long v Steine
|
-
|
Yes
|
-
|
|
Lovell v Metcalf
|
Yes
|
-
|
-
|
|
Holloway v Parsons
|
Yes
|
-
|
Yes
|
|
Pearce v Bird
|
Yes
|
-
|
-
|
|
Cooper v Bruce
|
-
|
-
|
-
|
|
Open Home Foundation v Butler
|
Yes
|
-
|
Yes
|
|
Chadwick v Walton
|
-
|
Yes
|
-
|
|
Hartley v Wood
|
Yes
|
-
|
-
|
|
Townsend v Poole
|
Yes
|
-
|
Yes
|
|
Cantrell v Cantrell
|
Yes
|
-
|
-
|
|
Pryor v Everett
|
Yes
|
-
|
Yes
|
|
Baker v Lawrence
|
Yes
|
-
|
-
|
An analysis of the use of external information in these cases demonstrates two key points. First, the use of the Ministry of Health guidelines and recommended immunisation schedules in the vast majority of the cases illustrates that judges understand their limitations when making a decision about what medical care is in the child’s welfare and best interests. Eleven judges thus turned to mainstream, government advice, backed up by leading scientific research, to assist their determination of what medical treatment was in the child’s welfare and best interests. Secondly, the consideration of the risk of community infection – either for the child’s immediate family or the wider public – demonstrates an awareness by the judges of the pandemic context in which these disputes occurred. It provides an insight into what makes the right of the child to participate in these disputes so unique, as it highlights that the judges are weighing this right alongside unprecedented considerations, such as whether the child not being vaccinated would further the spread of a harmful virus or undermine the nation-wide vaccine rollout plan.
III. Recommendation: A New Model for Child Participation
The analysis of the 14 COVID-19 cases has highlighted that in using the age and maturity of the child to determine the weight to be afforded to the child’s views, children are easily dismissed based on their limited understanding of the circumstances, or their young age. This is particularly because of the novel circumstances provided by the COVID-19 pandemic. This dissertation suggests that a new framework is required, to best comply with s 6, and to uphold the right of the child to participate in matters that affect them. This will particularly address the fact that the majority of judges in the COVID-19 cases relied heavily on the age and/or the maturity of the child to determine the weight to be afforded to the child’s views, despite the fact that these criteria are not explicitly mentioned in s 6. Relying on this criteria, instead of supporting the child to express their views, meant that assumptions were made about the child’s capabilities to understand the implications of vaccination, based on their age and the judge’s impressions about the child’s maturity.
I recommend a shift from a ‘substituted decision-making” model to a “supported decision-making” model to implement the right of the child to participate in matters that affect them. This shift is justified by changing approaches to child participation internationally, the research evidence on child participation, and New Zealand’s legal context.
A shift from a “substituted decision-making” model to a “supported decision-making” model would allow for a more effective realisation of the child’s right to participate. Substituted decision-making occurs where a guardian makes decisions on behalf of the child.207 Supported decision-making occurs where the child receives support from people they trust, to make decisions.208 A supported decision-making approach provides the necessary support according to the needs of the individual, to make decisions on matters that affect them.209
207 Nandini Devi, Jerome Bickenbach and Gerold Stucki “Moving towards substituted or supported decision making? Article 12 of the Convention on the Rights of Persons with Disabilities” (2011) 5(4) Alter 249 at 254. 208 Devi, Bickenbach and Stucki, above n 207, at 255.
209 Devi, Bickenbach and Stucki, above n 207, at 255.
The application of a supported decision-making approach would be a highly beneficial model for child participation in family law contexts, as it acknowledges that:210
Even people who have difficulty making choices, formulating decisions and communicating their preferences can make positive choices and decisions that further their personal development, relationships and participation in their communities.
Such a model would avoid focusing on the incapacity of the child to make decisions as an incomplete adult, and instead turn the focus onto what is required to provide the child with the appropriate support to make decisions.211
A substituted decision-making model can be found in the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD). Article 12 of the CRPD provides for equal recognition before the law, and stipulates that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”.212 It has been argued that Article 12 of the CRPD ought to be implemented through a supported decision-making approach, to assist individuals to make decisions.213 This is a unique approach, as through Article 12, “autonomy is perceived as relational, situational and environmental”.214 This, in turn, ensures that the question of whether an individual is capable of making a decision is not an “either/or” inquiry, but is instead focussed on providing “the necessary support to ensure disabled people can exercise their full capacity”.215
There have been indications in the international space that the CRPD could influence the interpretation and implementation of child participation rights. For example, Article 7 of the CRPD states that:216
States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with
210 Devi, Bickenbach and Stucki, above n 207 at 255.
211 Devi, Bickenbach and Stucki, above n 207, at 263.
212 Convention on the Rights of Persons with Disabilities GA Res 61/611 (2006), art 12(3).
213 Devi, Bickenbach and Stucki, above n 211, at 255.
214 Tisdall, above n 96, at 177.
215 Tisdall, above n 96, at 177.
216 Convention on the Rights of Persons with Disabilities, above n 212, art 7.
their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.
In relation to this, the Committee on the Rights of Child stated in 2016 that “adolescents with disabilities should ... be provided with opportunities for supported decision-making in order to facilitate their active participation in all matters concerning them”.217 Here, the Committee placed the concept of supported decision-making in the context of child participation.218 This is significant, given that previously, the Committee had focussed on the ability of the child to express their views in a “reasonable and independent manner”.219 This change in expectations for child participation could be indicative of new developments in how the right of the child to participate is upheld.220
A supported decision-making model would be highly effective in upholding the right of the child to participate. Tisdall has suggested that applying the principles of autonomy and supported decision-making contained in Article 12 of the CRPD to the right of the child to participate would eliminate competency biases from proceedings.221 This is because judges would no longer be determining whether a child’s views should be “discounted on the grounds of competence” through the use of age and maturity criteria, but would instead focus on the information that needs to be provided to children to enhance their participation in the proceedings.222 This reduces the dismissal of younger children, or children who initially present as anxious or uncertain, allowing them to reach their full potential in the expression of their views.
This model also reflects the legal context of the right of the child to participate. First, the UNCRC already provides for the right of the child to receive information, suggesting that children should be given the appropriate assistance and information, to allow them to express any views they may have. Secondly, a supported decision-making model aligns with s 6 of
217 Committee on the Rights of the Child General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence CRC/C/GC/20 (6 December 2016) at [32].
218 Rados Keravice “Disabled Children’s Participation in Healthcare Decision-Making” in AE Beckett and AM Callus (eds) The Routledge International Handbook of Children’s Rights and Disability (Taylor and Francis, London, 2023) at 216.
219Committee on the Rights of the Child General Comment No. 12 (2009) The right of the child to be heard
CRC/C/GC/12 (1 July 2009) at [30].
220 Keravice, above n 218, at 215.
221 Tisdall, above n 96, at 177.
222 Tisdall, above n 96, at 177.
COCA. The removal of the age and maturity criteria in s 6 is a strong indication from Parliament that judges should not be using these filters to determine the weight to be afforded to a child’s views. A supported decision-making approach is a compelling alternative to this, as instead of considering the age and maturity of the child, the professionals involved would seek to understand how they can support the child to express their views on matters that affect them. However, the interpretation of s 6 may be affected by the recent insertion of s 6(1AAA), which provides that the purpose of s 6 is “to implement in New Zealand Article 12 of the United Nations Convention on the Rights of the Child”.223 As Article 12 provides that the views of the child should be given “due weight in accordance with their age and maturity”, this may indicate that these filters should be read into s 6, in alignment with the Convention.224
A supported decision-making model would work particularly well with the nature of the decisions faced by the judiciary in the COVID-19 cases. As has been highlighted from the beginning of this dissertation, the relatively low-risk nature of the medical treatment proposed in these disputes allows the child’s voice to play a greater role in the decision-making process.225 Therefore, all children involved in disputes about whether, or not, they should receive the COVID-19 vaccinations ought to be supported to the extent necessary, and in a child-friendly way, to understand the implications of vaccination. This, in turn, would remedy the dismissal of younger children, and the perception that younger children are not able to fully understand the impacts of receiving, or not receiving, the COVID-19 vaccinations.
223 Care of Children Act, s 6(1AAA).
224 United Nations Convention of the Rights of the Child, above n 9, art 12.
225 See, for example, Long v Steine, above n 18, at [29].
Conclusion
The right of the child to participate in matters that affect them in family law contexts is a critical component of guardianship, and other family law, disputes. Research evidence emphasises that children, when they receive the appropriate support and information, are more than capable of expressing their views on matters that affect them. Providing children with this support ensures that they are taken seriously, and respected, as the persons ultimately affected by the decision. This respect requires that children’s views are not filtered out by adults – parents, mediators, lawyers and judges – through such factors as age and maturity, and that children who do not present as “rational” do not have their views dismissed.
The thematic analysis of the 14 disputes in New Zealand between guardians over whether, or not, their child(ren) should receive the COVID-19 vaccinations provides a significant insight into how the right of the child to participate was upheld in these unprecedented circumstances. The wider context of the global pandemic, as well as the fact that the medical treatment itself was relatively minor, were factors that impacted on the outcomes of many of these decisions. However, a trend in the use of age and maturity to either uphold the views of older children, or to dismiss the views of younger children, was highly evident. Furthermore, the use of Ministry of Health advice about the importance of vaccination, as well as the wider impacts of vaccination on the children’s communities, had significant influence in almost all of these decisions.
The analysis highlights not only the influence that the COVID-19 pandemic had on the right of the child to participate in these circumstances, but also indicates the need for a model of child participation that removes the emphasis on age and maturity, and focuses instead on supporting the child in the expression of their views. A supported decision-making approach, which aligns with the wording of s 6, would ensure that children are provided with the support needed to allow them to express their views, which, in turn, would provide the decision-maker with significant insights into what is important for that child. For COVID-19 vaccinations, this model would provide the child with the support that they need to understand the pandemic, and the impacts of vaccination, allowing them to express an informed view on the matter. A supported decision-making approach would recognise that children of all ages can make a
meaningful contribution to decisions about their medical treatment.226 Children are more than capable of developing insight into their own medical care, even at a very young age.
Adults need to be prepared to risk relaxing their control of situations in the interests of young patients. They must have the confidence to communicate in ways that children can understand and listen to the messages they are giving. ... Most children are sensible and reliable, especially when they are involved in making serious decisions about health care. Most health treatment decisions are not urgent or life-saving and there is time for children to discuss and come to terms with them.227
226 Sutcliffe, Sutcliffe and Anderson, above n 206, at 25.
227 Priscilla Alderson and Jonathan Montgomery Health Care Choices: Making Decisions with Children
(Institute for Public Policy Research, 1996) at 59 and 63.
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2. Australia
Family Law Act 1975 (Cth).
C. Treaties
Convention on the Rights of Persons with Disabilities GA Res 61/611 (2006).
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E. Journal Articles
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Nicola Taylor "Child Participation: Overcoming Disparity between New Zealand's Family Court and Out-of-court Dispute Resolution Processes" (2017) 25 The International Journal of Children's Rights 658.
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F. Parliamentary and Government Materials
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G. Reports
Committee on the Rights of the Child General Comment No. 12 (2009) The right of the child to be heard CRC/C/GC/12 (1 July 2009).
Committee on the Rights of the Child General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) CRC/C/GC/15 (17 April 2013).
Committee on the Rights of the Child General Comment No 14. (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para.1) CRC/C/GC/14 (29 May 2013).
Committee on the Rights of the Child General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence CRC/C/GC/20 (6 December 2016).
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(Family Court of New Zealand, July 2007).
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The Children’s Convention Monitoring Group Children’s Rights in The COVID-19 Response
(The Children’s Convention Monitoring Group, March 2021).
H. Dissertations and Theses
Michelle Fernando “Judicial Meetings with Children in Australian Family Law Proceedings: Hearing Children’s Voices” (Doctor of Philosophy, University of Tasmania, 2011).
Deborah Inder “Children’s Participation in the Context of Private Law Disputes in the New Zealand Family Justice System” (Doctor of Philosophy, University of Otago, 2019).
I. Internet Resources
Australian Government, Department of Health and Aged Care “Who can get vaccinated” (31 May 2023) <health.gov.au>.
Manatū Hauora Ministry of Health “Single case of COVID-19 confirmed in New Zealand (28 February 2020) <health.govt.nz>.
Manatū Hauora Ministry of Health “COVID-19 vaccine: Ages 12 to 15” (August 31 2021)
<https://www.health.govt.nz> .
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Starship “COVID-19 Vaccination in Children” (7 February 2023) <starship.org.nz>. United Against COVID-19 “COVID-19 Vaccine Rollout Plan” (10 March 2021)
<covid19.govt.nz>.
J. Other Resources
Mark Henaghan Principles under the Care of Children Act 2004 (online ed, LexisNexis) at [6.105C].
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