Chief Executive of Oranga Tamariki v WN [2020] NZFC 11597

Published 30 April 2021

Guardianship of court — vaccination schedule — immunisation — measles outbreak — welfare and best interests of child — care and protection — interim custody order — COVID-19 — Oranga Tamariki Act 1989, ss 14, 67 & 78 — Care of Children Act 2004, ss 30, 31, 46R & 133 — Family Court Rules 2002, r 90 — National Immunisation Schedule of Vaccines for Children — Hawthorne v Cox [2008] 1 NZLR 409 (2007 26 FRNZ 440) [2008] NZFLR 1 (HC) — Re CPPB FC Lower Hutt FAM-2008-063-226, 2 December 2011 — NGA v Hes FC Christchurch FAM-1999-009-2203, 5 September 2005 — Stone v Reader [2016] NZFC 6130 — Aguilar v Aguilar [2019] NZFC 7525 — AA v Family Court at Auckland [2018] NZHC 1638. This hearing was to determine an application by the Chief Executive of Oranga Tamariki ("OT") to have two children (aged five and six) placed under the guardianship of the Court pursuant to s 31 of the Care of Children Act, for the purpose of vaccination. There was an interim custody order in favour of OT in place (with final orders yet to be determined) as the children had been declared in need of care and protection. As no final order had been made it was not possible for OT to seek an order for sole guardianship, and therefore an order under s 31 was required. The children's father did not oppose the children being vaccinated, but the mother did. The mother submitted that she had looked at online resources which made claims of the dangers of vaccinations. The Court heard from an expert medical witness who was of the view that the best practice for the protection of children from infectious diseases such as measles, pertussis, and a range of other diseases was through adherence to the Ministry of Health's National Immunisation Schedule of Vaccines for Children. The Judge preferred the evidence of the medical expert, making a comparison between the different approaches of the United States and New Zealand in their respective responses to the COVID-19 pandemic, and the necessity of following empirical medical science. The Judge concluded that it was in the children's welfare and best interest for the immunisation schedule to be followed, and the only way for this to be achieved was for the children to be placed under the guardianship of the Court. The Judge made an order under s 31 accordingly. Judgment Date: 23 December 2020. * * * Note: names have been changed to comply with legal requirements. * * *