The Court today dismissed an appeal by the mother of 3 children the subject of interim accommodation orders, against a decision of a Children’s Court Magistrate, which permitted the insertion of a condition in the orders, on the basis that it was in the best interests of the children, to allow for the children to be vaccinated whilst in the care of the Department of Health and Human Services. 

The children, aged 5 and under, had been placed on family preservation orders in September 2016, and following allegations of breaches of those orders, which the Magistrate found to be ‘of a very serious nature’, interim accommodation orders were made placing the children in home-based foster care in August 2017.  

In September 2017, the Secretary instituted proceedings to vary the interim accommodation orders on the ground that the children were ‘currently at high risk from measles outbreak and unable to be sustained in out of home care placements due to no immunisations’ and that two of the children were unable to attend childcare due to not being immunised.  The children’s parents objected to the variation. 

The Magistrate concluded, pursuant to s 263(7) of the Children Youth and Families Act 2005 (Vic), that it was in the best interests of the children that the condition permitting vaccination be inserted.

On appeal, the question before the Court was whether the power granted by s 263(7) of the Children Youth and Families Act 2005 (Vic) for the Court to include ‘any conditions’ on an interim accommodation order which it considers to be in the ‘best interests of the child’ enabled the Magistrate to impose the condition which he did, or whether the imposition went beyond the power granted or otherwise misconceived the nature and scope of such power.  The issues before the Court did not include any consideration of the benefits or risks of vaccination as a matter of fact, but only a question of law concerning the statutory power of Magistrates in these and similar circumstances.

Osborn JA held that, as a matter of statutory interpretation, the Magistrate did not err in concluding that he had the power to make the orders which he imposed.

Note: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.

Note: This proceeding is subject to the restrictions on publications provided for in s 534 of the Children Youth and Families Act 2005.

Supreme Court of Victoria
Supreme Court of Victoria
Date of Publication

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