Covid-19: Can children be separated from parents during quarantine? (March 2021 update)

This is an update to an article that was published in April 2020.

Recently, an international school teacher tested positive after being linked to a spreading gym cluster. Consequently, a class of 8- to 9-year-old students were sent to the government quarantine centre. Following intervention from the school principal, the British Consulate, and legal representatives of the affected parties, the government reversed the decision. As a result, the decision was reversed and students were only required to conduct a COVID test as the teacher and students wore masks during classes and there were no frequent social activities.

Government protocol to manage Covid-19 is to quarantine and hospitalise all positive Covid-19 cases and to isolate all close contacts.  For many parents, the fear of being separated from their children, or of their children facing the trauma of hospitalisation or quarantine on their own, far outweighs the fear of the infectious disease.  The government’s quarantine facilities are also criticised for failing to adequately cater to the needs of young families, such as a lack of baby amenities and refrigeration units. How then can we balance the interests of public welfare with the welfare of children?

Under current legislation, the government has empowered authorised officers to impose orders of isolation or quarantine to persons on terms as specified in a Written Order.  The Order specifies the period and place of quarantine.  The authorised officers may, if appropriate, extend the period of quarantine until the officer considers that the person is no longer infectious or other medical surveillance can be applied.  The same protocol applies to cases of isolation.  Any person who contravenes an Order commits a criminal offence and is liable on conviction to a fine of $5,000 (level 2) and 6 months’ imprisonment.  Other persons who are not subject to the quarantine or isolation order must refrain from entering the place of quarantine and any unauthorised entrance is also subject to prosecution.

However, the legislation does open a window for exceptional circumstances.  In such exceptional circumstances, a health officer may give permission to any person or persons of any class to enter or exit from the designated place for quarantine or isolation subject to exceptions, conditions or restrictions deemed appropriate.  This provides a basis for special consideration and discretion under the strict regulatory regime to cater for situations where the person subjected to isolation is a child and the parent(s) wish to accompany the child and vice versa.

However there is no clear policy or guidelines in place as to how such a discretion is exercised.  The Department of Health states that special consideration will be applied on a case-by-case basis.  Considerations will be subject to the individual situation of the place of quarantine such as sufficiency of resources and other risk assessments.  However, the public, and in particular parents, seek clarity and transparency from the authorities especially when wide and draconian powers restricting freedom of movement are being deployed.  If a person is aggrieved by unreasonable decisions of the authorised officers, a last resort could be the institution of legal proceedings to challenge the legality of the officers’ decision (see below).

In contrast to the international school case above, eight children under 2 and their parents were sent to quarantine after a mother of a participant in their playgroup class in an education centre in Wanchai tested positive. Most of the participants, including the infected parent, were wearing masks. The young children were not wearing masks.

The difference between the two cases is that the children in the Wanchai education centre were not wearing masks. The government itself had previously advised against children under the age of 2 years wearing masks without supervision, as there could be a chance of suffocation or other health risks if face masks are not properly used. After this case, the government reviewed this advice by urging parents to keep babies at home and away from large groups.

These examples manifest the difficulties faced by health officers in exercising their discretion.

Tanner De Witt have assisted parents in situations which threaten to separate a child from a parent or designated guardian. The concerned parents should:

• Find out the terms of the quarantine or isolation order;
   
• Contact the health officer concerned for negotiation of special arrangements;
   
• Contact the Patient Liaison Officer of the Hospital Authority to intervene in negotiations of special arrangements;
   
• Seek legal representation for effective liaison with the authorities, if necessary;

• Contact consulate in cases of foreign nationals, if you are unable to negotiate efficiently;
   
• Institute legal proceedings (as discussed immediately below) as a last resort.

Potential legal remedies include Wardship Proceedings to make the child a ward of court. Allll major decisions in relation to the child’s best interest will then be decided and scrutinised by the Court. However, even if the child is made a ward of the Court, there are no precedent cases on the enforceability of an order to remove the child from quarantine. In the face of a lawful order it is questionable how effective this option may be.

A writ of habeas corpus to challenge the detention in government quarantine facilities is a remedy for all quarantined persons. In a Hong Kong case Syed Agha Raza Shah v The Director of Health HCMP 468/2020, the court found that the detention was necessary in the public’s interest having applied a 4-step proportionality test:

1. Legitimate aim: whether the quarantine order served the legitimate aim of protection of public health;
2. Rational Connection: whether the quarantine order was rationally connected with the advancement of the legitimate aim;
3. Proportionality: Taking into account the risk of transmission of COVID-19 and the social and economic consequences, whether the quarantine order was “manifestly without reasonable foundation”; and
4. Reasonable balance between societal benefits and individual rights: Whether the quarantine order had struck a fair balance between the restriction of the Applicant’s liberty and the protection of public health in Hong Kong.

Therefore again, it is questionable how effective this option may be in face of a lawful order.

The pandemic situation must be managed by swift and stringent public health measures. This necessarily creates a tension between public health officers applying the measures and parents seeking to protect the emotional well-being, health, and welfare of children. Public health measures need to be rigorously applied but with compassion and a recognition that emotional and physical hardship caused to families, children and other vulnerable groups can arise and need to be protected.

The government has helpfully made 2 announcements regarding the hospitalisation and quarantine arrangement involving children. For any child under 18 to be quarantined, the Department of Health, upon request, will allow one of the parents to accompany and take care of the child. If a parent is tested positive, a caretaker arranged by the parents could be allowed to accompany the quarantined child.  Expectantly, the authorities would continue to adapt to the needs of children, and to strike a balance between family needs and infection control measures.

This is not new. Families generally have been given choices to be with their children in circumstances that best balance the interests of the public and those of their own. Discussion with the health officers on the reasons for quarantine in a government quarantine facility and the possible alternatives available in a calm manner with the assistance of a lawyer, a G.P. and other medical professionals where needed is the best practical and immediate remedy.

Joanne Brown / Philip Swainston

If you need advice in respect of the above matters, please contact Partner Joanne Brown for a fixed fee quote at +852 2573 5000.

Joanne Brown
Partner | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.