Anti-vax parents unlikely to win child immunization disputes in court, B.C. lawyer says

Vancouver -

With children as young as five now eligible for vaccination against COVID-19, there are likely heated disputes brewing between parents with differing views – and some may eventually end up in a courtroom.

But dragging a fight over childhood immunization before a judge is unlikely to end well for anti-vaccine parents, according to B.C. lawyer Martina Milau, who dealt with a number of similar vaccine battles prior to the pandemic.

When it comes to healthy children who don't have any chronic health conditions, "I don't see a court ruling against vaccinations," Milau told CTV News.

Divorced or separated parents seeking to prevent a former partner from vaccinating their child face an uphill battle, the lawyer said, as they're also going up against public health recommendations that encourage immunizing eligible children as quickly as possible.

"A judge is not going to trump that," said Milau, who works at Clark Woods LLP in Coquitlam. "Judges look to experts all the time when they don't have the expertise in a subject."

The onus would be on that parent to demonstrate that vaccination would pose a significant risk to their child, and Milau suggested, based on her experience with other vaccine cases, that it wouldn't be an easy case to make.

The lawyer said if such a client approached her without the backing of a strong medical opinion, she might have to turn them away or send them to another firm.

"I don't want to take people's money for them to just lose," Milau said.

There are potential problems for parents on both sides of the dispute, however.

Milau said pro-vaccine parents may have an easy time getting their child immunized alone, despite a court order requiring them to make joint health-care decisions with their former partner, but cautioned that doing so could come back to bite them later on.

"If you were supposed to be doing something by consensus, even if you're right, if you do it unilaterally … it shows poorly long-term," Milau said.

There is also the option for young people to get vaccinated on their own, regardless of what either parent believes about immunization or the pandemic.

When Health Canada first approved COVID-19 vaccines for youths between the ages of 12 and 17, provincial health officer Dr. Bonnie Henry noted those minors can choose to get vaccinated against their parents' wishes under B.C.'s Infants Act, which allows minors to make their own informed medical decisions with the support of health-care professionals.

There is no set age under the law when a child is considered mature enough to give informed consent, though officials haven't commented on the possibility of those under the age of 12 using the Infants Act to get vaccinated.

For parents who do feel they need legal representation in a vaccine dispute, Milau stressed that they don't need to find a firm advertising a specialization with COVID-19 cases, which she described as an emerging "gimmick" in family law.

"People can go to any regular old family lawyer and get very competent advice and representation," she said.