Home / Client Talk / Advice for families on setting up a legal guardianship (during the pandemic) from Senior Associate Anisha Kumar Ramanathan of Withers!

Advice for families on setting up a legal guardianship (during the pandemic) from Senior Associate Anisha Kumar Ramanathan of Withers!

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For many parents, the fear of their children being separated from them and facing quarantine or hospitalisation alone, is a much larger concern than contracting COVID-19. What happens if one or both parents test positive for COVID-19?

The general rule is that the children are placed in a quarantine centre under supervision of social services and according to the Centre for Health Protection (CHP), they err on the side of caution and will isolate members of the public, regardless of their age.

While the CHP and the Department of Health have advised that special consideration will be applied on a ‘case by case’ basis, this is not helpful and does little to ease the minds of anxious and stressed out parents. The government issued a press release on March 16 to address ‘quarantine and isolation arrangements involving children.’ Whilst this is a step in the right direction, it seems clearer guidelines are required to ensure the best interests of children.

If children are required to be isolated at a hospital or a quarantine centre, their caretaker must seek permission to accompany them.

In light of this lack of clarity and transparency, the setting up of legal guardianship appears essential (to say the least). Knowing that their children are being cared for by someone they know and trust will give some comfort to parents.

The Guardianship of Minors Ordinance (Ca. 13) governs court proceedings relating to the custody and upbringing of children, as well as the appointment and removal of guardians. The appointment of a legal guardian is made pursuant to a Deed of Guardianship that is drafted by a solicitor.

Careful consideration should be given to the choice of the person or people designated as Legal Guardian and should be based on a variety of factors. What if the appointed guardian was someone associated with the recent ‘gym cluster’ and also, like the parents, tested positive? Consideration should be given to the ‘layer’ of guardians who are to be appointed and whoever is appointed should be someone familiar to the children. Consideration should also be given to the potential guardians’ age and health status, and whether they are committed to shouldering parental responsibility until the children reach the age of majority.

Parents should be aware, particularly in light of the COVID-19 pandemic, that technically a Deed of Guardianship document does not have binding legal effect. However, it will reinforce the expressed wishes of parents regarding the care and control of their children and convey these wishes to the authorities. This is particularly important if the parents are unable to effectively communicate their wishes.

Our team at Withers has extensive experience in dealing with child custody issues and Hong Kong family laws, so kindly get in touch with us to find out how we can help.

Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600,
www.withersworldwide.com/en-gb/hong-kong

For more information on setting up a legal guardianship, reach out to Anisha Kumar Ramanathan, Senior Associate at Withers, at [email protected]

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