Courts & vaccines for kids

When seven-year-old Sarah Jackson headed off to spend time with her father in mid-November, she and her mother assumed she would be back at the end of the scheduled visitation time. Instead, her father fled with her because, unlike her mother, he did not want her to get vaccinated against COVID. Neither she nor her father has been seen since.

Since Sarah was abducted, her mother has obtained a police-enforceable order for her return. Despite police follow-up on many tips, Sarah remains missing. According to the Saskatchewan RCMP, the criteria for an Amber Alert have not been met. Last week, her father was charged, albeit in absentia, with one count of abduction in contravention of a custody or parenting order.

While we know nothing about the history of the relationship between Sarah’s parents, it’s hard not to consider that her father may have been abusive towards her mother. Taking a child and disappearing with her – for whatever reason – is a classic threat (and action) by many abusive men who want to let their former partner know they are still in control of the family.

Frontline voices

Luke’s Place recently held its annual in-service session for Ontario’s Family Court Support Workers (FCSWs), whose job is to support women dealing with family law issues after leaving relationships in which they were abused. Usually, the most pressing issue for these women is ensuring safe parenting arrangements for their kids.

I asked the workers whether any of their clients were dealing with vaccine issues with their former partners. The answer was yes, which did not come as a surprise. After all, in the early weeks of the pandemic, some abusers took advantage of the public health crisis to manipulate parenting orders, stop paying child support and, generally, make life for their former partner as difficult as possible. A few months later, the focus shifted to fathers refusing to agree to appropriate schooling arrangements for the children, even when they had previously shown no interest in this issue at all. Now that vaccinations are available for children, that has become the weapon that some abusers use to maintain power and control.

While none of the FCSWs had dealt with a situation as extreme as the Jackson story, one reported a short-term abduction of a client’s children by her ex because he did not want them to get vaccinated. He was found by police several hours later. In his truck, along with the unharmed children, were a number of firearms. He has been charged, and his time with the children has gone from unsupervised to supervised. Another talked about a client who lost her decision-making role with the children because she refused to allow them to be vaccinated. Another shared a situation in which the father, who is not vaccinated, won’t mask and won’t let the children mask when they are with him. The mother has unilaterally stopped allowing the kids to see him, which leaves her in the same vulnerable position as many women with abusive ex-partners: taking steps to keep their kids safe in violation of the terms of a court order, thus risking legal action by the abuser.

Judicial notice

A quick review of recent vaccine-related family court decisions was reassuring. The courts are, generally, taking the same position they took in 2020 when parents couldn’t agree on other COVID-related issues: the government is to be trusted in terms of the regulations and recommendations it makes with respect to COVID-management, and court orders will reflect that.

In one case decided in late 2021, the judge took judicial notice of “the safety and efficacy” of vaccines to control the spread of COVID-19. This means the courts can take this as an established fact without evidence having to be presented to prove it:

“I find that the applicable government authorities have concluded that the COVID-19 vaccination is safe and effective for children ages 12 – 17 to prevent severe illness from COVID-19 and have encouraged eligible children to be vaccinated.”

In another case, the judge found that the father had engaged in family violence towards both the mother and the child and that he had had little involvement with the child. The father was unvaccinated. The mother sought to have the child’s time with the father supervised, and the court agreed, basing its decision on the history of family violence, the father’s lack of involvement with the child, his impulsivity and poor judgement, as well as the fact that he was unvaccinated. In his order, the judge set out stringent conditions to reduce the risk of the child contracting COVID-19, including:

  • a requirement that parenting time take place outside or in the paternal grandmother’s home
  • a prohibition on parenting time taking place in the father’s home, since he lived with his father and neither of them was vaccinated
  • a requirement that the father and child be masked during parenting time
  • a requirement that the child not be exposed to any unvaccinated people other than her father

The order also stated that:

“if the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.”

In a third case, in which the father faced criminal charges related to family violence, the court tied vaccinations to the best interests of the child, noting:

“The father can choose not to vaccinate himself to protect himself from contracting COVID-19. He can also choose to not protect the community by vaccinating himself, However, when he chooses not to protect the children from contracting COVID-19 by not vaccinating himself, this is a parenting choice that affects their best interests and reflects poorly on his parenting judgment.”

The court allowed the father to continue with in-person parenting time, but reduced the time and imposed similar conditions to those in the case above.

We have to hope that Sarah Jackson will be found and returned to her mother soon. In the meantime, Canadian courts have made it clear that there is a legal presumption in favour of vaccinating children against COVID-19, which may offer some hope to women whose ex-partners threaten to withhold consent for this.

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