Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Anti-vaccination movements, children’s’ rights and private power

Changing Mindsets, Changing Minds: Conference on the Rights of Children of Offenders

conference poster 1Human Rights in Ireland welcomes this post from Dr Fiona Donson, UCC

Children whose parents have been incarcerated have often been referred to as “invisible victims of crime and the penal system”. It is well accepted that the absence of a parent for a prolonged period of time will affect the physical and mental wellbeing of all family members including children. Moreover, it can affect the academic performance of children and may trigger bullying and social exclusion. It will inevitably impact negatively on the family’s finances.  At the same time, evidence shows that supporting prisoner’s families has positive outcomes for them as well as the wider community with prisoners being more likely to successfully reintegrate as a result.

UCC School of Law are hosting a one day international Conference of an interdisciplinary nature highlighting the rights of children affected by family imprisonment on December 05 2014, in Brookfield Health Sciences Complex. The aim of this innovative event is to bring together key professionals, researchers as well as those actively working in this area to share best practice and knowledge. Key note speakers will include the world renowned Justice Albie Sachs, a former Judge from the South African Constitutional Court.   Other international experts in this area will share their specialist expertise such as Ben Raikes, Senior Lecturer in Social Work, University of Huddersfield, Shona Minson, University of Oxford, and Lucy Gampell, Director of Children of Prisoners Europe. This event will also provide a platform for the NGO sector as well as those directly affected by family imprisonment. International practice perspectives will be drawn from England, Northern Ireland and Europe more generally, while national experiences and initiatives will also be highlighted. The impact of family imprisonment will be dealt with via the sharing of family experiences in panel discussions as well as a unique Children’s Art exhibition, to be hosted in Jennings Art Gallery UCC, which will provide attendees with a critical insight into the views of children and young people affected by imprisonment in Ireland. Continue reading “Changing Mindsets, Changing Minds: Conference on the Rights of Children of Offenders”

Changing Mindsets, Changing Minds: Conference on the Rights of Children of Offenders

Direct Provision: A Challenge to Law, A Challenge to Rights

Direct ProvisionOn February 28 2014, UCD Human Rights Network hosted a seminar, Direct Provision: A Challenge to Law, A Challenge to Rights.  Senator Jillian van Turnhout discussed, amongst other things, political engagement with the direct provision system. Kirsty Linkin, Law Centre (NI) discussed the impact of the Northern Ireland case, ALJ v Secretary of State for the Home Department (summary of this case here). You can access Kirsty’s slides here: Law Centre (NI) Direct Provision & the ALJ Case in Northern Ireland . Sue Conlan, from the Irish Refugee Council, examined the system of direct provision, with specific reference to framing an alternative to direct provision

I spoke on the use of law to challenge direct provision. My speaking notes for this are below. My slides can be accessed here: Using Law to Challenge Direct Provision.

Firstly, in addition to Prof Colin Scott’s and Senator Jillian van Turnhout’s welcome, can I welcome you to UCD School of Law. I am delighted to see so many of you at this UCD Human Rights Network seminar.

In the next 15 minutes, I will very briefly outline the system of direct provision and highlight the key problematic issues with direct provision, including legality, impact on individuals, children and families.

I will then turn to consider why I believe that law must be used to challenge direct provision, and offer some comments on how Irish, European and International law can assist in undermining the direct provision system.

I will then offer some concluding thoughts.

Direct provision will be 14 years of age on 01 April 2014. Direct Provision has survived a massive economic boom and an enormous economic bust. It has survived moments of significant and deep reflection by the Irish political establishment and Irish society as a whole on how, in decades passed, on the rights of children and societal treatment of women and men in industrial schools, Magdalenes laundries, mental hospitals, borstals and so on. Yet, direct provision remains in place.  Society’s capacity to look the other way, to not question or to show scant disregard for the rights of others remains.

For those not familiar with the system, this is an outline of the key attributes of direct provision

Asylum seekers are dispersed to privately run accommodation centres, on a bed and board basis, operated by the Reception and Integration Agency. There is no entitlement to any other welfare payment, bar the direct provision allowance payment of €19.10 per week per adult or €9.60 per week per child.

There is no right to work, on pain of criminal conviction; although asylum seekers are provided with medical cards and education up to leaving certificate (for those below a certain age). Direct provision is not compulsory, and a large minority of asylum seekers do not utilise direct provision.

Lets take a look at some statistics now. By December 2000, some 8 months into operation, there were 3,077 asylum seekers in direct provision. This, as we can see from the next slide, was from a total number of asylum applicants reaching in or about 10,000.  The numbers rose of just over 4,100 in 2001, before falling, and continuing to fall until from 2005-2009, the numbers in direct provision increased, while, at the same time, the numbers seeking asylum fell dramatically. In 2009, over 6000 people were resident in direct provision. At the end of December 2013, almost 4,500 people were in direct provision. Continue reading “Direct Provision: A Challenge to Law, A Challenge to Rights”

Direct Provision: A Challenge to Law, A Challenge to Rights

Race, Roma Parents and the Child Care Act.

Irish and international media outlets have been reporting that, in the past three days,  in two separate operations, gardai removed a young Roma girl and boy from their family homes (see here and here), placed them temporarily in the care of the State, and required them and their parents to submit to DNA testing to verify that parents and child were biologically related. As the Irish Traveller Movement have noted, it is disturbing that the details of what should be confidential child protection proceedings emerged into the public domain prematurely. Apparently, in both cases the children were fair-haired and blue-eyed, and their parents were not.  Now that DNA testing has proved both of the Irish childrens’ lineage to the satisfaction of the state, and they have been returned to their parents, questions remain. These cases are all the more poignant when we recall that forced removal of children has been a historical tactic of persecution deployed against both Roma and Irish Travellers.

How did gardai use their emergency power under s. 12 of the Child Care Act 1991 in these cases? (Hear the Special Rapporteur for Child Protection discuss the legal issues here.) S. 12 allows Gardai to summarily remove a child from the family home into the care of the HSE. The garda must have reasonable grounds for believing that there is an immediate and serious risk to the health or welfare of a child. This is not a new statutory provision. It is not clear what immediate and serious risk was present in that case, or what reasonable grounds the gardai were acting upon. Moreover, s. 12 is only to be used where it is not possible to wait for an application to the District Court for an emergency care order. It is not clear why this case merited the exercise of this -clearly exceptional – police power rather than one of the other, more measured pathways to care available under the legislation. Contrast this case with another reported today, in which s. 12 was clearly invoked as a last resort in the case of an 8 year old girl, known to the HSE, who had been living in direct provision with her ill mother since birth.

It is difficult to judge, from this distance, the reasonableness of the garda’s belief that the Roma girl returned to her family tonight was at immediate and serious risk at the time of her removal. Reasonable belief is not an especially stringent standard. For instance, a garda may take account of evidence which would not be admissible in court. Questions of prima facie proof are for the later court hearings required under the 1991 Act, and so it does not matter that the garda’s belief later turns out not to have been factually accurate. However, it is clear that mere suspicion is not enough to satisfy the statutory test. And while the garda’s belief should be formed in good faith, good faith is not in itself enough to satisfy the Act – the belief must also be reasonable. A reasonable belief cannot be formed on the basis of an individual’s ethnic heritage alone. Certainly, it is important to find out what garda protocols are in place in child protection cases to ensure that gardai eliminate sources of potential racial bias from their decision-making.

Newspaper reports suggest that gardai were not satisfied with the documentation which the girl’s parents produced to verify her parentage. Subsequent investigations have shown that the information they gave about her date and place of birth was accurate. We  know that at least one ‘tip-off’ to the gardai had come via facebook from a member of the public, who posted a message to the page of a television journalist known for reporting on Traveller and Roma issues.  When the cases were initially reported, Irish papers were quick to see an apparent connection between these cases and the Greek case of ‘Maria’. Newspapers rushed to judgment, describing the girl as ‘found living with’ a Roma family, as an ‘Irish Maria’ and a ‘mystery girl’.

Speaking to the Seanad this evening, the Minister for Justice has accepted that the concerns raised around both Roma children were baseless. However, while he is requesting a report into these events from the Garda Commissioner he is content to say that the the gardai acted in ‘good faith’ and not out of any particular motive to target a particular ethnic group. Of course, good faith and motive are not in issue here. If it appears that the gardai acted on concerns which primarily derived from the assumption that something extraordinary must happen in order for Roma parents to have a blonde, blue-eyed child, then matters of race are clearly in play. It is important to ensure that police zeal does not over-step the bounds of the right to private and family life (there are echoes here of the ill-fated Operation Charity, notionally designed to prevent forced marriages) or of the right to protection from discrimination. If it appears that Roma families have been targeted for arbitrary reasons connected to their racial identity, clear issues arise under Article 14 ECHR. The Immigrant Council of Ireland have noted the need for robust anti-racism measures in public institutions. We know, at this point, that institutional racism and racial profiling are real issues in Ireland A recent report from the Council of Europe (here) implicated the gardai in racial profiling.

Finally, as Pavee Point have noted today, these cases appear to have granted license to some in the more agitated quarters of Irish public opinion to resurrect old myths about one of Europe’s most marginalised communities. But the more worrying facet of this story is the Minister’s apparent complacency in the face of two very disturbing linked events, which now, in the cold light of day beg for thorough independent investigation.(Pavee Point have called for an independent inquiry). I am reminded of a speech by Jacques Ranciere at a forum about the proposed expulsion of Roma from France in 2010, in which he described racism as “a passion from above”:

I conclude: a lot of energy has been spent against a certain figure of racism—embodied in the Front National—and a certain idea that this racism is the expression of ‘white trash’ (‘petite blancs‘) and represents the backward layers of society. A substantial part of that energy has been recuperated to build the legitimacy a new form of racism: state racism and ‘Leftist’ intellectual racism. It is perhaps time to reorient our thinking and the struggle against a theory and a practice of stigmatisation, precariatisation and exclusion which today constitutes a racism from above: a logic of the state and a passion of the intelligentsia.

Race, Roma Parents and the Child Care Act.

Law Society of Ireland & IHRC Annual Human Rights Conference

This October, the Irish Human Rights Commission (IHRC) and the Law Society of Ireland will host the 10th Annual Human Rights Conference, Promoting and Protecting Human Rights in Ireland: The Role of the Irish Constitution and European Law.  The conference will examine the impact of the Irish Constitution, the European Convention on Human Rights and EU law in advancing human rights protection in Ireland. The role of Irish courts, quasi-judicial and administrative bodies will also be considered. When: Saturday, 13th October, 2012, 10:00- 14:30pm – Where: The Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 – Fee: There is no charge for this event. Booking: While attendance at the Conference is free, it is important to book your place as space is limited, by emailing: humanrightsconference@lawsociety.ie

Speakers include:

  • Mr. Justice William McKechnie, Supreme Court,
  • Ms. Justice Mary Laffoy, High Court,
  • Dr. Síofra O’Leary, Court of Justice of the EU and Visiting Professor at the College of Europe,
  • Mr. Michael O’Boyle, Deputy Registrar, European Court of Human Rights,
  • Dr. Hannes Krämer, Legal Service, European Commission,
  • Ms. Emily O’Reilly, Ombudsman, Ms. Emily Logan, Ombudsman for Children,
  • Ms. Barbara Nolan, Head of EC Representation in Ireland,
  • Mr. Gerry Durcan SC,
  • Dr. Dympna Glendenning BL,
  • Mr. Mark Lynam BL,
  • Mr. James MacGuill, MacGuill Solicitors,
  • Mr. Des Hogan, IHRC,
  • Ms. Sinead Lucey, IHRC,
  • Ms. Anna Austin, European Court of Human Rights,
  • Mr. Patrick Dillon-Malone BL,
  • Dr. Suzanne Kingston BL, UCD,
  • Ms. Síle Larkin, the Equality Tribunal and
  • Mr. Kieran Fitzgerald, the Garda Síochána Ombudsman Commission.


Law Society of Ireland & IHRC Annual Human Rights Conference

Weekend Reading: Human Rights Developments

This is a busy time of year for human rights reporting. In addition to those we have already highlighted, a number of important reports of interest to the wider Irish human rights community have been published recently:

 

Weekend Reading: Human Rights Developments

Yet Another Draft Text for the Children's Referendum Amendment?

Today’s Irish Examiner reports that a new wording for a children’s rights referendum is now being drafted by the Attorney General.

According to the report,

Taoiseach Brian Cowen told the Dáil that the all-party consensus and the wording resulted in a “range of unintended policy and resource implications”.

The suggestion that the wording proposed by the Oireachtas Committee on the Constitutional Amendment on Children gives rise to a number of implications that were previously unforeseen by government seems highly surprising given the involvement of government party representatives in the Committee’s work, including the drafting of the proposed wording. Indeed, given the time already spent by the Committee on the drafting, it is disappointing and frustrating that its work appears to have simply been set aside only for the ‘drafting process’ to be assumed by yet another actor – this time, the AG. Continue reading “Yet Another Draft Text for the Children's Referendum Amendment?”

Yet Another Draft Text for the Children's Referendum Amendment?

HSE v Dykes: Assessment of Need under the Disability Act 2005


One of the first High Court judgments to be delivered on the assessment of needs process outlined in the Disability Act 2005 was recently brought to light by the Irish Times (here). The decision of Justice Hanna in HSE v Dykes clarified that the age limit for applications for an assessment of need will be based on the date that the Act commenced, rather than the age of the child at the time that the application was made.

As of June 2007, the right to an independent assessment of need under section 9 of the Disability Act 2005 has only been commenced in relation to children under 5 years of age (Statutory Instrument S.I. No 234 of 2007). The decision in this case related to Liam Gallahue, who was born in August 2002 and therefore under 5 years of age when this part of the Disability Act was commenced. Liam was diagnosed with a severe form of autism, primarily affecting his voluntary muscles. His father Roger applied to the HSE for an independent assessment of need on Liam’s behalf in November 2007 and was refused an assessment on the basis that Liam was already 5 years old at the time of application. Continue reading “HSE v Dykes: Assessment of Need under the Disability Act 2005”

HSE v Dykes: Assessment of Need under the Disability Act 2005

UCC Event: 'Children’s Rights:The Proposed Constitutional Amendment'

The Faculty of Law, UCC, will be hosting an event on ‘Children’s Rights: The Proposed Constitutional Amendment’ on Thursday April 15.

Speakers will include:

The seminar will be chaired by Dr Ursula Kilkelly.

The event will run from 12.00-2.30 pm in Room LG 52, Cavanagh Pharmacy Building, College Road, Cork

A limited number of places are available, so please register your interest in attending by e-mailing conor.omahony@ucc.ie.

Legal Practitioners: 2 Hours of CPD points are available for attendance at this event.

The proposed Constitutional Amendment on the Child has previously been written about on this blog here, here and here . It was the subject of a recent HRinI blog carnival.

UCC Event: 'Children’s Rights:The Proposed Constitutional Amendment'

"Romeo and Juliet": Gender discrimination law challenge rejected

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states that

A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification. Continue reading “"Romeo and Juliet": Gender discrimination law challenge rejected”

"Romeo and Juliet": Gender discrimination law challenge rejected