VYG v VYH

• Jurisdiction: Singapore
• Judge: Kenneth Yap
• Judgment Date: 03 December 2021
• Neutral Citation: [2021] SGFC 124
• Court: Family Court (Singapore)
• Docket Number: OSG 140 of 2021
• Year: 2021
• Published date: 19 February 2022
• Hearing Date: 30 November 2021,03 December 2021
• Plaintiff Counsel: Mr Chung Ting Fai (Chung Ting Fai & Co.)
• Defendant Counsel: Ms Alina Sim (Axis Law Corporation),Court-appointed counsel Ms Rina Kalpanath Singh (Kalco Law LLC) as the child representative.
• Subject Matter: Family Law,Guardianship,Welfare of child,Custody,Joint Orders,Parental Authority
• Citation: [2021] SGFC 124

District Judge Kenneth Yap: Introduction

This is an application filed by the Father against the Mother under section 5 of the Guardianship of Infants Act (Cap. 122) (the “GIA”). The Father seeks a direction from the court to allow their child to receive vaccination against COVID-19 upon obtaining the child’s consent.

Facts Parties and the child

The Father, aged 49, is a British Citizen and a Singapore Permanent Resident. The Mother, aged 53, is a Singapore Citizen. Both parties were married on 2 November 2003. The Father filed for a divorce on an uncontested basis on 20 April 2015, and the divorce was made final on 15 October 2015, and the Father has since remarried¹.

The parties have a daughter (“the child”). She was born on 8 August 2005, is currently 16 years old and in her first year of the International Baccalaureate (IB) programme in a local school².

Background to the dispute

Under the terms of the interim judgment, both parties have joint custody of the child with care and control to the Mother. According to the Father, both parties did not face any problems in relation to the child’s care arrangements until this GIA application.³. While the Mother is the primary caregiver to the child⁴, in practice, the child resides with the Father after school on Wednesday, and returns to the Mother’s premises on Sunday⁵.

Both parties could not come to an agreement on whether the child should receive the COVID-19 vaccination. The Father accordingly filed this GIA application on 4 October 2021 and sought an order for the child to receive the COVID-19 vaccination upon the child’s consent.

The parties’ cases The Father’s case

The Father took the position that it would be in the child’s best interest to receive the vaccination especially in view of the government’s policy of living with the virus and the recent hike in the number of COVID-19 cases in Singapore⁶. The Father had exhibited various Straits Times articles and advisories from government agencies that the COVID-19 vaccination is safe for use on adolescents⁷.

The Father also stated in his affidavit that the child wishes to be vaccinated⁸ and had exhibited a handwritten note from the child dated 30 September 2021 indicating her desire in this regard⁹. The note indicated her desire to be vaccinated for two reasons: first, to prevent herself from becoming seriously ill if she contracts the virus, and second, to be able to socialise with her friends and to travel overseas, such as to the UK to visit her grandparents, whom she has not seen for nearly two years.

The Father had also obtained two medical memoranda from the East Coast Family Clinic and KK Women’s and Children’s Hospital indicating that the child is fit to proceed with the COVID-19 vaccination as she has no prior allergic reactions to vaccines or drugs and has no medical conditions that contraindicates her from having the vaccination¹⁰.

Accordingly, the Father prayed for the court to grant an Order-in-Terms of his application for the child to be vaccinated.

The Mother’s case

The Mother objected to the Father’s application.

First, the Mother argued that in view of the order for joint custody, both parties ought to be making major decisions in respect of the child, including decisions on medical treatment and vaccination¹¹. As the child is under 21 years old, the Mother took the view that joint parental consent is required for the child to receive the vaccination and there was no basis for the Father’s application to allow the child to make her own decision concerning her vaccination¹².

Second, the Mother argued that it is not in the child’s best interest to receive the vaccination due to the possible adverse effects of the vaccination. In support of her position, the Mother had exhibited several articles and videos reporting on the side effects of COVID-19 vaccinations, including for adolescents aged 12-17 years¹³. The Mother also argued that there is no need for the child to be vaccinated as the risk of vaccine injury or death is higher than the risk of the child falling sick if she were to contract the virus¹⁴. The Mother herself is unvaccinated, and adopts a wait-and-see position for a better solution or treatment to surface in the near future¹⁵.

In addition, the Mother took the view that the child does not have sufficient maturity or deep understanding of the issues in relation to the possible side effects of the vaccination¹⁶ and that she is under pressure to be vaccinated so that she can travel to the UK with the Father and his current wife and new baby for Christmas¹⁷. Accordingly, the Mother’s position is that there was no reason to place the child at risk of the side effects of vaccination especially since the child’s sole motivation to be vaccinated is to socialise and travel for leisure¹⁸, and that the child would be safer unvaccinated than if she were to receive the vaccine¹⁹.

On 12 October 2021, the Mother had accompanied the child for a consultation with Dr T, a specialist in Internal Medicine, to determine the child’s suitability for the COVID-19 vaccination. Dr T had furnished an affidavit on 29 October 2021, exhibiting a medical report where she opined, among other things, that a weighing of risks and benefits did not justify the administration of the COVID-19 vaccine on a person like the child who has a high level of innate immunity²⁰.

Accordingly, the Mother prayed for the court to dismiss the OSG application.

Events leading up to the hearing The child’s first dose of the COVID-19 vaccination

Despite ongoing proceedings which had been filed on 4 October 2021, the child proceeded to receive the first dose of the Pfizer-BioNTech vaccination on 5 November 2021²¹. According to the Mother, this was done against the Mother’s wishes and without her prior knowledge. The Mother exhibited email correspondence with the medical centre which confirmed that the child was accompanied by the Father who gave his consent for her to receive the first dose of the said vaccination. Subsequently, the child fell ill with headache, a sore throat and fever on 15 November 2021 and consulted a doctor²². However, she tested negative for both the Antigen-Rapid Test and the Polymerase Chain Reaction test and returned to school on 18 November 2021²³.

On 12 November 2021, an order was made at a case conference to restrain both parties and/or their agents from allowing the child to proceed with the second dose and the booster shot pending the hearing and the outcome of the application. It was also ordered that the child was to be told that she is not to proceed with the second dose, or the booster shot, before the court made its determination in this application.

Appointment of child representative

Further, at the case conference on 12 November 2021, the court, on its own motion, made an order for the appointment of a child representative pursuant to Rule 30(1) of the Family Justice Rules 2014 (the “FJR”).

Ms Rina Kalpanath Singh (the “Child Representative” or “CR”) from Kalco Law LLC was appointed as a child representative, with the limited scope of ascertaining the following: Whether the child understands the concerns raised by the Mother in her affidavit on the possible risks of vaccination as well as the official government position on vaccination for teenagers; Whether the child is of sufficient maturity to appreciate these risks as compared to the gains of vaccination; and Whether the child confirms the contents of her note in her Father’s affidavit and maintains her preference to be vaccinated.

Pursuant to her appointment as a child representative, the CR had a 45-minute video call with the child on 22 November 2021 and had exchanged messages with the child on WhatsApp for about 10 minutes on 24 November 2021²⁴.

On 24 November 2021, the CR filed her report (the “CR Report”) and served a copy of the same on both parties pursuant to Rule 32 of the FJR.

In summary, the CR Report confirmed the child’s intent on being vaccinated, and made the following observations: The child was bright, very intelligent and well read, and stated that she had a good relationship with both parents. The mother had spoken with the child and explained her concerns against vaccination. The child did not agree with her mother’s stand on vaccination, and would remain silent when her mother spoke to her about it, so as not to antagonize her mother. She accepts that her mother is coming from a position of love, as well as concern for her health, safety and wellbeing. The child was able to recall her medical examination with Dr T and the fact that the doctor spoke to her about the risks associated with taking the vaccine, including the lack of studies on how the vaccine may impact a person’s health over the long term, the lack of transparency regarding the content of the vaccines as well as how some people’s lives and health had been adversely impacted after being vaccinated. The child is aware of the Singapore government’s official policy regarding vaccination for teenagers aged 12 and above, and that the government is also considering vaccination for children below the age of 12. She trusts the government’s policy on vaccination is in the best interests of its people, and notes that as of 22 November 2021, 94% of the eligible population of Singapore had received two doses of vaccines and are doing well. She believes it should be no different for her. The child shared that everyone in her class had been vaccinated, and none had suffered adverse effects. Her social life has been impacted as she can only hang out in friends’ homes or take walks with them, and she feels inhibited as a result. She wishes to visit her family in the UK and needs to get vaccinated as travel restrictions have been lifted for vaccinated persons. She confirms that apart from experiencing pain in her arm, she did not suffer any other side effects from her...