Parental choices over vaccinations and how it relates to custody in Hong Kong

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On 11th January, the Hong Kong Government announced that Hong Kong children from as young as 5 years old can be given the Sinovac vaccine produced in China, and the minimum age for receiving Germany’s BioNTech vaccine will also be lowered to 5 from 16th February as the city deals with the latest wave of the coronavirus, the fast-spreading Omicron variant. Classes for kindergarten and primary school children have closed until after Chinese New Year.

Understandably, parents have mixed views on whether to vaccinate children of such a tender age. The take up of the vaccine in Hong Kong for adults is already generally lower than many other countries due to concerns of the local population of side-effects in getting themselves inoculated, let alone making that decision for their young children.

This situation could be further complicated by separating or divorced parents who do not share the same view on vaccination. Feelings may run high if one parent is pro-vaccination and the other is not. Where parents are separated or divorced, there will normally be an order for custody, care and control for their children which regulates who has custody of the children and their day-to-day care. Whether parents are granted sole or joint custody orders may impact whether or not they need the other’s consent before a major decision (such as vaccination) can be made, and to what extent.

“Custody” means the ability to make the major decisions in a child’s life such as which school the child attends, health and religious issues, etc. The more common order made by the court is joint custody which recognises that children benefit from the involvement of both parents and that they should make important decisions on behalf of their children together wherever possible. This will mean that parents with joint custody will have to reach a consensus on vaccination before either of them can take their child to be vaccinated. However, while theoretically, a parent with sole custody is able to make decisions on his/her own, it is a misconception that the parent with sole custody can go ahead and make all important decisions for the child without any reference to the other parent. Although the parent with sole custody may have the ability to execute those decisions, she or he must always consult with the other parent, where possible. Both parents have the right to be consulted in respect of these issues and, should a parent who has been granted sole custody of the children act unilaterally, the parent without custody can make an application to the court to be heard. Sole custody is generally ordered when there has been a breakdown in communication between the parents and it may be the case that certain important custodial decisions are resolved by the court.

In practice, if there is a conflict on an issue such as whether to have the child vaccinated, the court has a duty to consider what would be in the best interests of the child. The parents would be well advised to seek medical advice on this before commencing a court action. If the parents still cannot agree, it is likely that the family court judge will appoint a single joint expert, which will be an approved doctor, to assess and provide an opinion for the court to consider. The parents can agree on the single joint expert, failing which the court has the power to appoint one. It is clearly important for both parties and the court that the expert is unbiased and independent, rather than being funded by one party or the other.

Parents generally understand that conflict is not in the interests of their children, and, although they may be bitter with each other, they will generally settle matters for their children. It is important to acknowledge that parents should not be tempted to enter into a conflict situation regarding their children on the pretext that they both have their children’s best interests at heart. This may be genuine, but sometimes, sadly, it is not. Parents should acknowledge that they both have a right to be heard on medical decisions, but that conflict should be kept to a minimum. In the absence of agreement, generally, decisions regarding medical treatment should be left to the doctors.

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