Parental Disputes About the COVID-19 Vaccine

The Hong Kong Government recently launched the voluntary COVID-19 Vaccination Programme, which can be administered on adults and older teens (aged 16 and above) but not on 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.  However, we may expect to see increasing concerns and disagreements between divorced parents on whether their children should receive the COVID-19 vaccinations, if and when they are introduced for children.

The question of whether a child can be vaccinated is a custodial issue.  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 major decisions include medical care, religion and education.  If parents are granted joint custody of a child, they are required to make these decisions jointly.  However, if a parent is granted sole custody of a child, although the decision-making power vests in that parent,  the non-custodial parent still has the right to be consulted on all on major decisions regarding the child’s upbringing. 

Irrespective 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 the first and paramount consideration and will make a decision in the child’s best interests.

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 vaccinations 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/or
  2. The parent objecting to the vaccination can show evidence confirming medical contraindication specific to the child receiving the vaccine.

Unless the parent objecting to the vaccination is able to provide compelling evidence in respect 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 addressed the issue of the COVID-19 vaccine.  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 shared parental responsibility of the children.  The mother raised several objections, for example, relating to the efficacy of vaccinations, and the fact that they are 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 in accordance with the NHS vaccination schedule.  The Judge declined to rule on the COVID-19 vaccination as this is yet to be included in the NHS childhood vaccination schedule but he stated 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”. 

Hong Kong has a childhood vaccination programme recommended by the Centre for Health Protection of the Department of Health, namely, the Hong Kong Childhood Immunisation Programme.  Although we are yet to see cases in Hong Kong relating to parental disagreements over COVID-19 vaccinations, if faced with a similar situation, the Courts in Hong Kong are very likely to endorse the UK Court of Appeal’s approach in determining disagreements over COVID-19 vaccines.

Executive Partner and Head of the Family and Divorce practice, Gall

With over 20 years in family law practice, Caroline McNally has considerable experience in complex financial disputes with substantial assets, as well as difficult children matters including relocation cases. Her international experience has equipped her to handle the most complex of cases and advise on matters with cross-jurisdictional elements.

Solicitor, Gall

Loretta Ho was admitted as a Solicitor in Hong Kong in March 2018 and focuses her practice on family law matters including divorce proceedings, financial claims, children matters and relocation applications.