This article has been written by the legal experts from Withersworldwide and posted on this website as the result of a paid collaboration between Hong Kong Madame and Withersworldwide
by Vanessa Duff, Senior Associate, Divorce and Family Team
In early February, the Hong Kong government expanded its COVID-19 Vaccination Programme by approving the BioNTech jab for children between the ages of 5 to 11, in addition to Sinovac, which was already approved for children over 3*. However, surveys* have shown that some parents have been reticent to allow young children to be vaccinated.
One of the most dividing matters of our times, COVID-19 vaccination, can become a legal matter when it comes to young children who have no power of decision. A common reaction is to want to protect your child from the potential side-effects of the vaccine but what if your child’s return to school depends on his/her vaccination status?
When parents are separated or divorced, and each has a different view about whether their child(ren) should be vaccinated or not, how is this resolved? The parent who has custody of the child has the power to make such decisions, but often divorced parents have shared custody, and even if there is sole custody in favour of one parent, this does not prevent the other parent from objecting and taking the matter to Court.
If the matter goes to Court, a decision will be made by the judge based on the child's welfare and what is in the best interests of the child. There has not been any Court decision related to COVID-19 vaccination for children in Hong Kong so far. It’s therefore helpful to look at the approach of the Court in England & Wales, where this matter has been considered.
In England & Wales, parental consent must be given for all child vaccinations. If parents disagree, then legal proceedings can be commenced, either to prevent a child from being vaccinated, or to secure an order for a child to be vaccinated. The prevailing view is that if there are no contra-indications in relation to the child in question, and the vaccine is recommended by the department of health, the administration of a routine vaccination is likely to be seen as to be in the child's best interests. The English Court has accepted that there is scientific evidence that it is generally in the best interest of healthy children to have routine vaccinations.
In a relatively recent decision in the English Court of Appeal* the Court was asked to specifically address the issue of giving the COVID-19 vaccine to children aged four and six. In this case, the father applied for an order that the children should receive the COVID-19 vaccine alongside their routine shots. The mother objected.
In that specific case, the Court didn’t make the order as it was thought to be too early to make such an order with no visibility on when the vaccine would be available to children, and what the government recommendations might be. However, it was clearly stated by the same Court that future decisions will most likely involve endorsement of the COVID-19 vaccination programme in the event of the vaccine being approved for children.
It is very likely that the Hong Kong Court will follow the same approach if there is a dispute amongst parents, and therefore order that the vaccine is in the best interests of the child now that the government recommendation is to vaccinate all children (above the age of 3). This will be even more true if the COVID-19 vaccine is ultimately added to the Childhood Immunisation Programme. In order to successfully oppose an application for a child to be vaccinated, the other parent will almost certainly have to demonstrate that there is a real medical reason why the child should not be vaccinated, and this is supported by an expert medical opinion.
* https://www.scmp.com/news/hong-kong/health-environment/article/3166446/dont-wait-get-vaccinated-what-hong-kong-parents
**https://www.scmp.com/news/hong-kong/health-environment/article/3167734/coronavirus-three-quarters-hong-kong-parents
***M v H, P, T [2020] EWFC 93
by Vanessa Duff, Senior Associate, Divorce and Family Team
In early February, the Hong Kong government expanded its COVID-19 Vaccination Programme by approving the BioNTech jab for children between the ages of 5 to 11, in addition to Sinovac, which was already approved for children over 3*. However, surveys* have shown that some parents have been reticent to allow young children to be vaccinated.
One of the most dividing matters of our times, COVID-19 vaccination, can become a legal matter when it comes to young children who have no power of decision. A common reaction is to want to protect your child from the potential side-effects of the vaccine but what if your child’s return to school depends on his/her vaccination status?
When parents are separated or divorced, and each has a different view about whether their child(ren) should be vaccinated or not, how is this resolved? The parent who has custody of the child has the power to make such decisions, but often divorced parents have shared custody, and even if there is sole custody in favour of one parent, this does not prevent the other parent from objecting and taking the matter to Court.
If the matter goes to Court, a decision will be made by the judge based on the child's welfare and what is in the best interests of the child. There has not been any Court decision related to COVID-19 vaccination for children in Hong Kong so far. It’s therefore helpful to look at the approach of the Court in England & Wales, where this matter has been considered.
In England & Wales, parental consent must be given for all child vaccinations. If parents disagree, then legal proceedings can be commenced, either to prevent a child from being vaccinated, or to secure an order for a child to be vaccinated. The prevailing view is that if there are no contra-indications in relation to the child in question, and the vaccine is recommended by the department of health, the administration of a routine vaccination is likely to be seen as to be in the child's best interests. The English Court has accepted that there is scientific evidence that it is generally in the best interest of healthy children to have routine vaccinations.
In a relatively recent decision in the English Court of Appeal* the Court was asked to specifically address the issue of giving the COVID-19 vaccine to children aged four and six. In this case, the father applied for an order that the children should receive the COVID-19 vaccine alongside their routine shots. The mother objected.
In that specific case, the Court didn’t make the order as it was thought to be too early to make such an order with no visibility on when the vaccine would be available to children, and what the government recommendations might be. However, it was clearly stated by the same Court that future decisions will most likely involve endorsement of the COVID-19 vaccination programme in the event of the vaccine being approved for children.
It is very likely that the Hong Kong Court will follow the same approach if there is a dispute amongst parents, and therefore order that the vaccine is in the best interests of the child now that the government recommendation is to vaccinate all children (above the age of 3). This will be even more true if the COVID-19 vaccine is ultimately added to the Childhood Immunisation Programme. In order to successfully oppose an application for a child to be vaccinated, the other parent will almost certainly have to demonstrate that there is a real medical reason why the child should not be vaccinated, and this is supported by an expert medical opinion.
* https://www.scmp.com/news/hong-kong/health-environment/article/3166446/dont-wait-get-vaccinated-what-hong-kong-parents
**https://www.scmp.com/news/hong-kong/health-environment/article/3167734/coronavirus-three-quarters-hong-kong-parents
***M v H, P, T [2020] EWFC 93
About Withersworldwide
Since 1896, Withersworldwide’s teams have been trusted advisors to successful people and businesses with complex legal needs, in good times and bad. Championing its clients’ interests, locally and globally, from offices across the US, Europe and Asia-Pacific, Withersworldwide help many clients use their success to make the world a better place.
https://www.withersworldwide.com/
30/F United Centre, 95 Queensway, Hong Kong
Vanessa.Duff@withersworldwide.com
+852 3711 1698
Since 1896, Withersworldwide’s teams have been trusted advisors to successful people and businesses with complex legal needs, in good times and bad. Championing its clients’ interests, locally and globally, from offices across the US, Europe and Asia-Pacific, Withersworldwide help many clients use their success to make the world a better place.
https://www.withersworldwide.com/
30/F United Centre, 95 Queensway, Hong Kong
Vanessa.Duff@withersworldwide.com
+852 3711 1698
