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Parental choices over vaccinations and how it relates to custody

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Jocelyn Tsao, partner, and Philippa Hewitt, professional support lawyer in the divorce and family team at Withers, outline what you need to know

Last month, the Hong Kong Government announced that Hong Kong children from as young as three years old could be given the Sinovac vaccine produced in China starting February 15; Germany’s BioNTech vaccine was made available to those aged five to 11 from February 16 as the city deals with the worse wave of the coronavirus.

Understandably, parents have mixed views on whether to vaccinate children of such a tender age. 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.

The more common order made by the court is joint custody which recognises that children benefit from the involvement of both parents and that parents should make important decisions on behalf of their children together wherever possible. Parents with joint custody will therefore have to reach a consensus on vaccination before either of them can take their child to be vaccinated.

While theoretically, a parent with sole custody is able to make such decisions on his/ her own, he/ she 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. Parents are 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 – 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.

Given that vaccination is a matter of custody requiring the consent of both parents, it will be prudent to enquire what the other parent’s attitude is and try to reach a consensus on this issue sooner rather than later, so that when emergencies arise requiring immediate vaccination, the decision to vaccinate can be executed promptly without having to seek the Court’s adjudication.

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. 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.

Withers has extensive experience in dealing with child custody and Hong Kong family law issues. Contact the writers: Jocelyn Tsao at [email protected] and Philippa Hewitt at [email protected].

Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com.

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