As the number of COVID-19 cases has been on the rise in Hong Kong, so have parents’ concern for their children. Recently, we have been asked by several folks: what would happen to my child if s/he is tested positive for COVID-19? This concern is enhanced by the fact that, if a family member is tested positive, it is likely that the infected person will be isolated, and the family members quarantined. So, what can be done if your infant or young child is tested positive? Will the family stay together or be sent to separate facilities?

Under the Prevention and Control of Disease Ordinance, the government Health Officer (“HO”) has broad authority and discretion to issue isolation and quarantine orders. There appears to be no specific legal authority to support a parent’s request to isolate together with a child, and it means that a parent facing this situation would have to use persuasion in the face of an HO’s decision to implement an isolation order.

Once an HO decision is made, parents could challenge the decision in court in the form of judicial review. However, a court proceeding is expensive and carries risk: in Hong Kong, the loser pays the winner, making a challenge to an HO’s order a potentially devastating financial decision. Furthermore, the harm to the child would have occurred before a judicial challenge could begin because the child would have to be removed, or at least be issued an order. Generally speaking, courts will not rule on a theoretical situation.

As such, prevention seems to be the best approach to this issue: hand washing, social distancing, and mask wearing. Should you have concerns, contact us and we can discuss some potential options.

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