health
There is no law in Hong Kong requiring children to be vaccinated , but many schools will not admit children if they are not fully vaccinated . For now , the Covid-19 vaccine can only be administered on adults and older teens but not on children . However , if and when Covid-19 vaccinations are rolled out for children , we may expect to see increasing concerns and disagreements between divorced parents on whether their children should receive it .
Who gets to decide ? The question of whether a child can be vaccinated is a custodial issue . When parents divorce , the Courts in Hong Kong will grant either joint or sole custody of a child to the parents . The parent with the custodial rights will be empowered to make major decisions to safeguard and promote the child ’ s health , development and general welfare . These include decisions such as medical care , religion and education . If parents are granted joint custody of a child , they are required to make joint decisions regarding the child ’ s upbringing . If a parent is granted sole custody of a child , the decision-making power vests in that parent , but the non-custodial parent still has the right to be consulted on all on major decisions regarding the child ’ s upbringing . Therefore , regardless of the parents ’ custodial rights , if there is a disagreement over child-related matters including medical
decisions such as vaccinations , an application can be made to the Court to determine such matters . In doing so , the Court will have regard to the welfare of the child as first and paramount consideration and will make a decision in the child ’ s best interests .
Recent cases Although we are yet to see cases in Hong Kong relating to parents ’ disagreement over Covid-19 vaccinations , in a recent English decision Re H ( A Child : Parental Responsibility : Vaccination ) [ 2020 ] EWCA Civ 664 , the Court of Appeal undertook a careful review of the issues relating to vaccination and explained that the only reason for a vaccine to not be in a child ’ s best interests is : 1 . There is credible development in medical science or new peerreviewed research indicating significant concerns of the safety of the vaccines ; and
2 . The parent objecting to the vaccination can show evidence confirming medical contraindication specific to the child receiving the vaccine . In the absence of the above , the Court is very likely to conclude that it is in the child ’ s best interests to receive vaccinations if recommended by the UK ’ s Public Health Authority .
In another case of M v H , P , T [ 2020 ] EWFC 93 , the UK Court also addressed the issue of the Covid-19 vaccine . In that case , the mother objected to the children
being given NHS routine-childhood vaccinations . The father applied initially for the children to receive routine immunisation vaccines but widened his application to include the future Covid-19 vaccine . In this case , both parents had parental responsibility of the children . The mother raised several objections , for example , relating to the efficacy of vaccinations , and the fact that they ’ re not compulsory in England , however the Court dismissed these objections and concluded that it was in the children ’ s best interests to have childhood vaccines per the NHS vaccination schedule . The Judge declined to rule on the Covid-19 vaccination as this is yet to be included on the NHS childhood vaccination but he went on to state that “ it is very difficult to foresee a situation in which a vaccination against Covid-19 approved for use in children would not be endorsed by the Court as being in a child ’ s best interests , absent peerreviewed research evidence indicating significant concern for the efficacy and / or safety of one or more of the Covid-19 vaccines or a well-evidenced contraindication specific to that subject child ”.
If faced with a similar situation , the Courts in Hong Kong are very likely to endorse the UK Court ’ s approach in determining disagreements over Covid-19 vaccines .
Kajal Aswani is a Partner at Gall , a leading Hong Kong dispute resolution law firm .
www . gallhk . com
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