Reading Time: 3 minutesWhen parents separate, the immunisation of children can become a big issue.
Though Hong Kong’s COVID-19 vaccination scheme has only recently become available to people aged 16 and above, clinical trials in young children are already underway, meaning that it’s only a matter of time before the COVID-19 vaccine becomes approved and available to children.
So, what happens when divorced parents disagree on COVID-19 vaccinations? Kajal Aswani, Partner at leading Hong Kong dispute resolution law firm Gall, weighs in.
What happens when you and your ex-partner don’t agree on vaccinating your children?
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.
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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)  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 peer-reviewed 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  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 peer-reviewed 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.
More about Kajal Aswani
Kajal joined Gall’s award-winning Family & Divorce practice as a Partner in July 2020 and is an experienced disputes resolution lawyer with a focus on family disputes. Kajal is a member of the Hong Kong Family Law Association and served on the committee of the Young Solicitors Group of the Law Society of Hong Kong from 2007 to 2011. She is also a founding member of the South Asian Lawyers Group (SALG) Hong Kong and a member of the Sindhi Community of Hong Kong.