Covid-19: Can children be separated from parents during quarantines?

24Apr2020

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.  How then can we balance the interests of public welfare with the welfare of children?

Under the 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.

The legislation however, does open a window for exceptional circumstances.  In such 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 deem 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.

However there is no clear policy or guidelines in place as to how such a discretion is exercised.  The Department of Health, in reply to our recent enquiries on behalf of a client, advised 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.  The public, and in particular parents, however 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 for judicial examination to challenge the legality of the officers’ decision.

Tanner De Witt has assisted parents in these situations.  If a situation arises which threatens 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;
     
  • Institute legal proceedings, if necessary.

The pandemic situation must be managed by swift and stringent public health measures. This necessarily creates a tension between public health and the emotional well-being and welfare of children.  There is ample evidence suggesting the risk of psychological damage to children due to traumatic separation can be severe.  Public health measures can be effective as well as compassionate and recognition of the considerable distress and damage to families, children and the more vulnerable groups of the public is essential.

If you need advice in respect of the above matters, please contact Philip Swainston, Consultant at +852 2537 5000.

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.