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Family and Divorce law in South Africa - A Comprehensive Guide
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COVID-19 Vaccines and children

Vaccinating Children for COVID-19

Covid-19 Vaccine and children
The area and practice of family law is molded by and evolves through societal change, legislation, global events (like a pandemic), and by judicial decisions.

With the beginning of a new school year in 2022, talks about a likely further wave, and anticipated access to vaccines for children 12 – 17 years, the issue of vaccinations of children will become more relevant. Nonetheless, this is more acrimonious amongst separated or divorced parents that maintain polarizing opinions on the vaccination of their children.

The Department of Health in South Africa started on 20 October 2021, with the registration and vaccination of children aged 12- 17 years old with Pfizer vaccine in line with the guidelines from the Ministerial Advisory Committee on Vaccines.
​
This comes after an statement made by the Minister Health, that all children 12-17 years and older will be eligible to get one dose of Pfizer vaccine. Many of them at secondary or high school level.

What does the law say regarding children?

“Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.”
(Constitution of the Republic of South Africa 1996, section 12(2).

Section 28 of the Constitution provides that “a child’s best interests are of paramount importance in every matter involving the child”. This incorporates matters affecting the health and wellbeing of the child. Generally speaking, parents want the best for their children and their concerns are founded on wanting to shield them from harm.

The law governing minors and consent to medical treatment is covered in several pieces of legislation. Even with the guidance of specific legislation, there will be grey areas in the matter of consent to treatment of minors. The maturity of the child concerned, the wishes and opinions of the parents or guardian, as well as the clinical circumstances, all have to be considered and a few of these may conflict. The concept to bear in mind in such situations is that the child’s best interests are vital.

In law, the consent of the parent or legal guardian is needed if a child is under the age of 12. The issue of consent is dealt with in the Children’s Act, 2005. The most significant provision of this Act is the setting of the age of consent to medical and surgical treatment at 12 years, this includes COVID-19 vaccination.

Section 129 of the Children’s Act, 2005 states that children can consent to medical treatment, including vaccination. Section 129 reduces the age at which the law views a child should be in a position to consent to treatment or vaccination. Particularly, it makes the following provisions:

Children aged 12 or older, provided that they have the maturity “to understand the benefits, risks, social and other implications of the treatment”, may therefore consent to medical treatment, including a vaccine on their own behalf.

Where a child of 12 or older does not have the maturity to make an well-informed decision a parent, guardian or caregiver of the child may consent on behalf of the child to medical treatment. The child must consequently be mature enough to comprehend the implications of undertaking the suggested treatment, but if he/she lacks capacity, a person with parental responsibility or a caregiver can consent on his/her behalf.

The Children's Act therefore acknowledges and respect children’s developing capacities and provides them the responsibility to make choices but ensures that they do so only if they have the ability to comprehend the choice they are making. There is also a duty on adults to help children make good decisions.

It is in children’s best interests to assist them to make the right decisions. Parents have a duty to make sure their child’s health and wellbeing, both physical and psychological, and to promote their children’s capability to make their own choices. When children are very young, parents make all the decisions for them, however as they get older, they are given more responsibility to make decisions for by themselves. The law endeavors to balance providing children freedom and protecting them from difficult choices by requiring parents, caregivers, or other adults to support them. Even though adolescents can decide for themselves, it is crucial for parents and caregivers to pay attention to their children and talk about the risks and benefits.

The Best Interests of the Child

There might be situations where a minor child's opinions and standpoints are contradictory with those of the parent/guardian, insofar as medical treatment (including vaccination) is concerned.

In this case, the compelling principle is "the best interests of the child". In establishing the best interests of the child, the maturity, views, opinions, and suggestions of the minor child are taken into consideration. Likewise, the objections of the parent/guardian, grounds, views and notions are given their deserving consideration.
 
Parental Rights and Parenting Plans

A parenting plan usually states that the parents shall make joint decisions about major issues concerning their child which includes decisions about the child’s medical care. Where parents can't agree on vaccination decision-making authority, (where a child is not mature enough to make a decision on his/her own) can be challenged by a parent even with respect to medical decisions like vaccinations. In a 2015 case in Canada C.M.G. v D.W.S, the court held that the child was to be vaccinated in compliance with the father’s wishes and in opposition to the parenting plan. The judge found that it was in the child’s best interests to be vaccinated and that the benefits outweighed the potential side-effects. This leading case demonstrates the general support of public health guidance on vaccinations against vaccine-preventable diseases.

With the start of Covid-19, however, there will be a lot more legal battles between ex-spouses and partners over the vaccination of their children. At the start of Covid-19, in Canada in the case of Tarkowski v Lemieux, the court awarded the father decision-making power with regard to vaccinations of the child. The court evaluated the mother’s beliefs around vaccines and decided that she demonstrated bias because of to her hesitancy to vaccinate and belief that it is associated to autism. The father was in a much better position to comprehend the dangers associated with vaccinations. The court also held that should the Covid-19 vaccine become offered to children, then the father will have authority to unilaterally decide to vaccinate the child.

In another case the parents did not agree about whether their child should get the usual childhood immunizations. The father contended that having the child entirely unvaccinated against vaccine preventable diseases puts the child at an increased risk in the face of Covid-19. The court concurred with the father and held that the mother failed to provide any evidence of careful science-based research for denying the child to be vaccinated. The court found that under the circumstances and the medical evidence of vaccine safety, the mother’s actions to not vaccinate were not in the child’s best interest.

In a recent case A.C. v L.L. 2021 ONSC 6530 the court held that all governments and public health agencies have promoted the safety and effectiveness of the Covid-19 vaccine. Therefore, until otherwise proven, the general presumption is that it is in the best interest of the children to be vaccinated. Moreover, the court also held that it is in the best interest of the children to be vaccinated against Covid-19 before attending school in person. This case dealt with 14-year-old triplets, two of whom lived with the father and one with the mother. The two children residing with their father – P and J – attend school virtually, whilst the third, E, attended school in person, although he was unvaccinated. The father wanted P and J to attend school, but the two boys mentioned they wished to be vaccinated prior to going to school in person, a position the father backed. The triplet who resided with his mother and was unvaccinated has said he does not want to be vaccinated. The mother, nevertheless, refused to provide the father with P and J’s health cards or identification, that would allowed them to be vaccinated. She said she wanted them to go to school, but unvaccinated, suggesting the government has not yet made vaccinations compulsory for children to go to school.

Specifically, Justice Charney held that:

"The responsible government authorities have all agreed that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have recommended eligible children to get vaccinated. These government and public health authorities are in a much better position than the courts to give consideration to the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated".

Justice Charney also considered whether the mother needed to consent to any of her sons being vaccinated. In his decision, he wrote, “as a matter of law, the mother’s consent is not necessary,” citing the province’s Health Care Consent Act, which does not give any minimum age requirements for determining the capacity of a child to make medical treatment decisions. He concluded that in this case the children were entitled to receive the Covid-19 vaccine. Justice Charney took the position that while P and J, who desired the vaccine, did not need the mother’s consent, the third son, E, could remain unvaccinated as he wished.

It will be interesting to see how the South African courts will deal with parental disagreements regarding vaccination. It is evident from Canadian case law that that public policy and medical opinions acknowledges vaccine safety in establishing the best interest of the child. Absent any contradicting evidence, the courts are most likely to grant the parent wanting to vaccinate their child the medical decision-making authority with respect to immunizations. Consequently, if public policy recommends vaccine safety for children under 12 years, then the court will likely follow suit.

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Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities