As Hong Kong grapples with its largest COVID-19 outbreak yet, parents have been grappling with vaccinating their children against the virus.
COVID-19 vaccines have been available to children aged 3 to 11 for around 2 weeks now and so far, about 34% of this age group have received their first dose. It seems many parents have decided that vaccination is for their children’s best interests, in hopes of in-person schooling to be resumed (which has been put on hold repeatedly over the last 2 years) or amidst concerns in light of recent reports of 4 children who have sadly passed away after testing positive with COVID-19.
But what if a child’s parents have opposing views on vaccination?
Under the Hong Kong law, the authority to give consent for vaccinating a child lies with the child’s parents. If the parents cannot agree on whether to vaccinate their child, then the parent favouring vaccination may need to apply for a Court Order allowing them to do so.
In cases where there are special concerns about a child’s welfare, the child may become a ‘ward of the Court’ upon an application being made by an ‘interested party’ (e.g., the Director of Social Welfare, who is empowered to protect children). Once a child becomes a ‘ward of the Court’, this means that the Court has the custody of that child and every major decision regarding that child’s welfare (e.g. medical treatment) must be referred to the Court.
So far, there is no Hong Kong court decision reporting on parental disputes over COVID-19 vaccination or applications to vaccinate a child who is a ward of the Court against COVID-19. We can, however, observe reported cases from other common law jurisdictions to gage the approach that the Hong Kong Court might adopt.
Re H (A Child) (Parental Responsibility: Vaccination)  EWCA Civ 664
- The case concerned a 9-month-old child in the care of a local authority (“LA”) that had obtained a Court Order for the child to receive ‘routine vaccinations’ for infants. The parents of the child objected to the vaccinations.
- The disputed issue was whether the LA had existing powers to give consent for vaccinating a child in its care, or whether vaccination is a serious and grave issue which needed to be resolved by a special application to the High Court.
- The Court decided that the LA had existing powers to give consent to vaccinate a child in its care. In so doing, the Court set out the following principles:
- Although vaccinations are not compulsory per se, scientific evidence clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance, unless there are specific contra-indications in an individual case.
- Administering standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Unless there are significant features suggesting that it may not be in the best interests of a particular child to be vaccinated, it not necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes vaccination of their child. This would strain the local authority’s already-scarce time and resources, involve unnecessary instruction of expert medical evidence, and use of the High Court’s time which could be better spent dealing with urgent and serious matters.
- Parental views regarding immunisation must always be taken into account, but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.
M v H, and PT  EWFC 93
- This case involved a dispute between parents over vaccinating their children, aged 4 and 6. The father applied for a Court Order requiring the children to receive: (a) childhood vaccinations according to the NHS vaccination schedule, (b) vaccinations that might be required for travel abroad, as well as (c) COVID-19 vaccination. The mother opposed.
- The presiding judge decided to only grant an Order requiring the children to receive childhood vaccinations according to the NHS vaccination schedule, but in passing, he also stated an opinion that:
“[I]t 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.”
Re C (Looked After Child) (COVID-19 Vaccination)  EWHC 2993 (Fam)
- This case involved a dispute between a child (aged 13 and subject to a care order) and the relevant local authority (who were in support of vaccination against COVID-19) on one hand, and the child’s mother, who was opposed to the proposed vaccination. The mother did not suggest that the child had any known conditions which may contradict the use of the vaccines, nor did she provide proper evidence other than what can be described as anti-COVID-19 vaccination propaganda.
- The Court granted an Order for the child to receive his COVIDCOVID-19 vaccination and in so doing, affirmed the principles in Re H. In particular, the presiding judge confirmed that: “In the absence of any factors of substance that might realistically call into question whether the vaccinations are in an individual child’s best interests, decisions for the child to undergo standard or routine vaccinations that are part of national vaccination programmes are not to be regarded as “grave” decisions having profound or enduring consequences for the child.” In most cases regarding children under care orders, even where parents object, there is no need to come to Court.
When considering these cases, it should be noted that Hong Kong does not have legislation that is equivalent to the UK’s Children Act 1989. There was a draft Children Proceedings (Parental Responsibilities) Bill presented in 2015, but as of 2022 this has still yet to be enacted. We urge the prompt enactment of the Bill to offer better protection to children’s welfare. In the meantime, the legal bases for the Hong Kong Court to make similar orders may be found in section 10 of the Guardianship of Minors Ordinance or, alternatively, section 19 of the Matrimonial Proceedings and Property Ordinance if the dispute/application arises in the context of divorce proceedings between a child’s parents. We expect that most likely, the Hong Kong Court would adopt a highly similar approach to that adopted by the English Court, but with more reference to local government policies and guidelines.
Having said the above, as family law practitioners, we always encourage parents to engage in sensible dialogues that focuses on the best interests for their children and avoid going to Court if possible. Between disputing parents, escalating family disputes to the Court will likely deepen mutual resentment and create even more stress and anxieties for both the parents and the children. The fifth wave of COVID outbreak in Hong Kong has brought unprecedented challenges to every citizen, and children are no exception. They are the most vulnerable members of society who require our support now more than ever. Children will want to be comforted and cared for by their parents, whether at home, in medical care, isolation, or quarantine – being the subject of vigorous arguments on vaccination is unlikely to be of comfort to them. Finally, from a public resource’s perspective, demands on the Court’s time and resources are ever-growing, especially in light of reduced operating hours and staffing. Every case that goes before the Court requires a lot of time, care, and attention that might be better spent dealing with very serious and urgent cases.