Victorian Supreme Court accepts vaccination of children can be ordered, even against parents’ wishes

ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017)

Summary

The Supreme Court of Victoria held that the Children's Court Magistrate had the power to authorise the vaccination of three young children as a condition of interim accommodation orders (IAOs) pursuant to s 263(7) of the Children Youth and Families Act 2005 (CYFA), contrary to the wishes of both parents.

Justice Osborn held that s 263(7) of the CYFA is only capable of one interpretation and therefore the rights under the Charter of Human Rights and Responsibilities Act 2006 (VIC) (Charter) were not relevant to the construction of s 263(7) of the CFYA. 

Facts

This case concerned three children, aged 2, 3 and 5 years, subject to IAOs and placed in foster care following the breach of Family Preservation Orders made pursuant to s 280 of the CYFA.  The Secretary to the Department of Health and Human Services (Secretary) brought an application to the Children's Court to vary the conditions of the IAOs pursuant to s 268(2) of the CYFA which would allow the children to be vaccinated as they were at high risk from measles outbreak, unable to be sustained in out of home case placements and two children were unable to attend childcare as a consequence of lack of immunisation.

The children's mother objected to this variation. 

Central to the case was the interpretation of the power granted to the Court by s 263(7) of the CYFA to impose conditions in IAOs. Section 263(7) relevantly provides:

An interim accommodation order may include any conditions that the Court or bail justice considers should be included in the best interests of the child.

The Children's Court Magistrate held that the condition was in the best interests of the children because, among other things, the foster carers were facing substantial practical difficulties relating to the children’s care due to the children not having been immunised.

The children's mother appealed the Magistrate's decision the Supreme Court of Victoria and submitted that the Magistrate’s power under s 263(7) to impose conditions in the best interests of that child did not extend to making decisions which have significant long-term consequences. 

In relation to the Charter, the children's mother relied on s 17(1) which states:

(1)        Families are the fundamental group unit of society and are entitled to be protected by society and the State.

As such, she submitted that s 263(7) is limited to 'arrangements for the temporary accommodation of a child' and/or must not 'impact on parental responsibility' such as to have significant long-term consequences for that child and undermine the family unit.

On the other hand, the Secretary relied on s 17(2) of the Charter which states:

(2)        Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Consequently, this supported the Secretary’s submission that s 263(7) provides the Court with a wide discretion to make conditions it considers to be in the best interest of the child and therefore that the Magistrate had the power and did not err when the condition that the children be vaccinated was imposed.

The Court directed that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) be given notice pursuant to s 35(1) of the Charter since a question regarding the interpretation of statutory provision in accordance with the Charter had arisen.

The Attorney-General intervened and, in addition to s 17 of the Charter, relied on ss 10(c)  and 13(a) of the Charter, which respectively provide for the rights relating to protection from medical treatment without consent and to privacy, in support of their interpretation of s.263(7).  The Attorney-General also submitted that the relevance of the Charter rights was contingent on whether the interpretative provision, s 32 of the Charter, applied.

The VEOHRC did not intervene.

Decision

The Supreme Court upheld the Children’s Court Magistrate’s decision to vary the IAOs to allow immunisation of the children. First, Justice Osborn engaged in statutory interpretation of s 263(7) of the CYFA separately from the Charter considerations and found, among other things, that the condition related directly to the children’s accommodation and was consistent with the primary principle and factors set out in s 10 of the CYFA.

The Supreme Court then considered the applicability of the Charter in the construction of s 263(7) of the CYFA and held that it was not relevant. In accordance with the jurisprudence and the Attorney-General’s submissions, the Court noted that the Charter rights identified by the parties would only be relevant to the interpretation of s 263(7) if the interpretive provision of the Charter applied.

Section 32(1) of the Charter provides:

32        Interpretation

(1)        So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The Court held that the intention in s 263(7) was clear, ie to consider the best interest of the child in accordance with the CYFA. Since s 263(7) is capable of only one meaning when interpreted in accordance with standard techniques of statutory construction, s 32(1) of the Charter did not apply and the respective Charter rights identified by the parties as potentially relevant could not be relied on to argue for an alternative interpretation of s 263(7).

Commentary

This case confirms that although the Court has a wide discretion as to the conditions it may impose in IAOs, the primary consideration must be the “best interests of the child” as construed within the CYFA. There are no separate Charter considerations in relation to s 263(7).    

Notwithstanding this, Justice Osbourne made the following comments as dicta regarding the parallels and distinctions between the CYFA and the Charter:

  1. Section 17 of the Charter is echoed in the primary principle and factors set out in s 10 of the CYFA for identifying best interest of the child. For example, section 17(1) of the Charter which provides for the protection of families as a fundamental group unit of society is reflected in s 10(3)(a)-(b) of the CYFA relating to the importance of positive family relationships.
  2. Case law recognises it is legitimate to limit the right s 17(1) in order to give effect to the right in s 17(2). 
  3. Sections 10(c) and 13(a) of the Charter were of no further assistance construing the CYFA. Section 10(c) relating to medical treatment without consent must be in in accordance with the best interest of the child in s 17(2) of the Charter. Section 13(a) would not apply to a lawful and properly considered condition imposed by the Court.  
  4. Since the Court's interpretation of s 263(7) took into consideration the factors in s 10 of the CYFA, the Court's interpretation of s 263(7) is not incompatible with both ss 17(1) and (2) of the Charter.

The full text of the decisions can be found here.

Anne-Marie Jones is a lawyer at Lander & Rogers.