Oldham, Li & Nie Solicitors: How to deal with with the separation of children from parents if both parents are tested positive for COVID-19 in Hong Kong?

As the coronavirus pandemic continues to rage across the globe and numerous restrictive measures remain in place in Hong Kong, many parents are concerned about the possibility of being separated from their children should parents be tested positive for Covid-19 and result in isolation and quarantine.

 

Hong Kong has some of the strictest isolation rules for virus patients

 

At present, the Centre for Health Protection errs on the side of caution and isolates and hospitalizes all positive Covid-19 cases, regardless of age. At the same time, close contacts of Covid-19 positive cases are isolated and sent to government quarantine centres.

For many parents, the fear of their children facing quarantine or hospitalisation alone, or being separated from them, is becoming a bigger concern than contracting the virus itself.

Despite public health imperatives, the emotional well-being and welfare of children is fundamental and many experts highlight the risk of psychological damage to children due to traumatic separation from their family.

 

Can parents elect to leave their children with a relative or a domestic helper if they are hospitalised?

 

If it appears that in the event children tested positive are under the age of eight, healthy parents can choose to stay with them in the hospital, the situation is more delicate when parents are tested positive and are the ones sent to the hospital.

Indeed, the general rule is that the children are placed in a quarantine center under supervision of social services.

The Centre for Health Protection, replying to one of our recent requests conducted on behalf of a client, advised that special consideration will be applied on a case-by-case basis as to whether the children will be able to stay in the quarantine center with a relative or a domestic helper designated by the parents who express this wish.

Considerations will be subject to the individual situation of the place of quarantine such as sufficiency of resources and other risk assessments.

We note at this time there is no clear policy or guidelines in place as to how this discretion is exercised on children and their families. And the section dedicated to hospital isolation on the website of the government simply provides that “Coronavirus patients are kept in isolation wards in Hong Kong hospitals until they twice test negative for coronavirus. You may be separated from your child if one of you tests positive for coronavirus. If this happens to you, you can call +(852) 2901 3000 for 24/7 urgent consular assistance. Non-residents may be charged for their care.”

If it turns out that a decision to refuse the application made by the parents is taken, it appears possible to introduce a judicial review procedure to challenge the legality of the decision. However, to date, there is no precedent-setting decision.

 

The setting up of a legal guardianship

 

In light of this lack of clarity and transparency, the setting up of a legal guardianship appears at the very least indispensable.

The Guardianship of Minors Ordinance (Cap. 13) governs court proceedings relating to the custody and upbringing of children, as well as the appointment and removal of guardians.

In Hong Kong, when both parents die, the orphaned minor child is taken as a charge by the social services of the Hong Kong State, while waiting to be entrusted to a guardian appointed by a court.

When parents are living out of their home country, it is always recommended to appoint Legal Guardian for their minor children. More generally, this is part of well-established estate planning and a consideration parents should ponder regardless of the pandemic we are going through.

The designation of a Legal Guardian is made pursuant to a Deed of Guardianship that is drafted by a solicitor.

The choice of the person designated as Legal Guardian must be taken after careful consideration and based on various elements. Attention should be given to the appointed individual’s age, health status, and the link maintained with the children. Insofar as the appointed Legal Guardian will be in charge of the parental responsibility of the children until they reach the age of majority, it is crucial to ensure his/her commitment to act in this way.

If the designated Legal Guardian of the children do not live in Hong Kong, the appointment of temporary guardians is necessary to take care of the children until they can be with their Legal Guardian.

 

In the context of the Covid-19 pandemic, the setting-up of a legal guardianship does not provide an automatic right for the child to stay in quarantine with the designated guardian but in any case, this is an element that will reinforce the wish expressed by the parents. In addition, we hope that common sense prevails in this kind of situation.

In a nutshell, if a situation arises which threatens to separate a child from a parent or designated guardian, the parents should in any event, (i) find out the terms of the isolation order, (ii) contact the health officer concerned in order to negotiate an arrangement and express the wish that a designated relative, domestic helper or guardian stay in the isolation center with the children, (iii) seek legal representation for effective liaison with the relevant authorities.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.