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

Understanding Children’s Rights: A Training Programme on Children’s Rights and Effective International Advocacy

Ireland will appear before the UN Committee on the Rights of the Child in 2015/2016 to report on its record for children under the UN Convention on the Rights of the Child. In advance of this examination, the Children’s Rights Alliance is providing an exciting opportunity to upskill on children’s rights and effective international advocacy.This training programme is the first of four key activities that we will undertake in advance of Ireland’s examination which includes: conducting a nationwide consultation, drafting a national parallel/shadow report, coordinating a children and young people’s report and advocating/leading a delegation before the UN Committee on the Rights of the Child.

This two-day interactive training programme will take place on Thursday 16 and Friday 17 October 2014. The programme will cover:

  • Understanding childhood
  • Introduction to children’s rights
  • Exploring ways to make children and young people active agents in their rights
  • Enforcement of children’s rights in Ireland
  • Understanding the UN Human Rights Reporting Process and the workings of the UN Committee on the Rights of the Child
  • Writing impactful Parallel Reports and taking part in effective international advocacy

 

An array of expert speakers will provide interactive, engaging and practically-focussed sessions. Each participant will receive a full training pack and resources for each session. Speakers include:

  • Brian Barrington BL
  • Professor Dympna Devine, University College Dublin
  • Anne O’Donnell, Department of Children and Youth Affairs, Participation, Play, Recreation and Culture
  • Dr. Geoffrey Shannon, Special Rapporteur on Child Protection
  • Dr. Liam Thornton, University College Dublin
  • Veronica Yates, Children’s Rights Information Network

 

Venue: Carmelite Centre, 56 Aungier Street, Dublin 2

Cost:    Children’s Rights Alliance members: €50; non-members: €100

Places: Places are limited and preference will be given to Children’s Rights Alliance members. The Irish Council for Civil Liberties will subsidise up to six places for those on limited incomes.

For more information and to book your place contact: Edel Quinn, Children’s Rights Alliance by phone at (01) 6629400 or by email at edel@childrensrights.ie.

This training programme is kindly co-sponsored by the UN Human Rights Council Legacy Project of the Irish Council for Civil Liberties. For more information, visit www.rightsnow.ie and www.iccl.ie.

Understanding Children’s Rights: A Training Programme on Children’s Rights and Effective International Advocacy

Children's Rights to Healthcare and Healthcare Services Conference, June 6th, UCC

On June 6th the Faculty of Law and the School of Nursing and Midwifery at University College Cork will host a conference on Children’s Rights to Healthcare and Healthcare Services. Speakers include the Ombudsman for Children Emily Logan, Professor Johnathan Hourihane of UCC, Dr Elspeth Webb, Consultant Paediatrician and Clinical Reader in Child Health at Cardiff University and James Robinson, Coordinator HPH Taskforce for Health Promotion with Children and Adolescents, Edinburgh.

Full details and the booking form are available here.

Children's Rights to Healthcare and Healthcare Services Conference, June 6th, UCC

The Direct Provision System: The Time for Change is Now

Over recent weeks, the issue of direct provision has been raised on several occasions within and outside the Irish Parliament (see here, here and here). Breda O’Brien’s excellent article in Saturday’s Irish Times and a letter by a practicing Cork based GP in today’s Irish Times add further weight to the calls (since 2001) for a fundamental reform of this punitive and penal system. A system that indefinitely denies a right to work no matter how long it takes to take a decision on  a refugee/subsidiary protection/leave to remain claim and forces some asylum seekers into communal living for years on end is not fit for purpose.

The Minister for Justice, Alan Shatter TD and the Secretary General of the Department of Justice (pp. 9-11, p. 13) have defended the system on the basis of a 2010 Value for Money Report. This report is deeply flawed for a number of reasons:

  1. The only people responsible for drafting the report were officials from government departments. There were no representatives from those living in direct provision or of any civil society organisations who seek to represent the interests of asylum seekers;
  2. It was presumed (totally unreasonably) Continue reading “The Direct Provision System: The Time for Change is Now”
The Direct Provision System: The Time for Change is Now

Children's Rights Alliance UNCRC Film Project: Funding Appeal

We are delighted to welcome the following post by Edel Quinn. Edel  is a member of the Legal and Policy team at the Children’s Rights Alliance.  The Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child. It aims to improve the lives of all children under 18, through securing the necessary changes in Ireland’s laws, policies and services.Legal and Policy Officer with the Children’s Rights Alliance. You can read more about Edel and see her previous guest posts on the Contributors’ page.

The voice of the child is a fundamental principle of the UN Convention and in Ireland we are starting to tune in, and pay attention to the views of children and young people. To build on this beginning it is important to continue to give them a platform, and now is the time to give them their voice.

Working with a group of young people, Children’s Right Alliance has a plan to leverage this voice.  We have just launched an exciting new film project, spearheaded by a group of young people that will be premiered in early 2013.  This short film will explore the effects of Ireland’s 1992 ratification of the UN Convention on the Rights of the Child, on its laws, policies, and services, as well as on children and young people themselves. This film will be a celebration of the UN Convention and our journey so far in securing its full implementation, here in Ireland. Continue reading “Children's Rights Alliance UNCRC Film Project: Funding Appeal”

Children's Rights Alliance UNCRC Film Project: Funding Appeal

The Children's Referendum: The Result

With polls closed, and counting now complete, the Irish people have voted to amend the Irish constitution by inserting Article 42A into the constitution. There was an exceptionally low turnout, and a very strong no vote. In the end, the total Yes vote was: 57.4% (615,731 votes) to the No vote: 42.6% (445,863 votes). This was on a turnout of just 33.5%.

The analysis over the coming days will no doubt turn to a number of core issues: lack of interest/participation amongst the public at large despite a well funded, well oiled Yes campaign; the limited nature of the amendment and the emergence of issues that had little to do with what the actual referendum was about. Fundamental issues relating to trust and political apparatuses of the State, conduct of referendum campaign by government, civil society organisations and individuals will also need to be issues up for debate. In terms of ‘what next?’, it is now the duty of the Oireachtas to ensure that the issues of children, child protection and children’s rights remain on the agenda.

The Children's Referendum: The Result

The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System

Dr Maebh Harding is a senior lecturer in the School of Law, University of Portsmouth

In order to have a truly child centred legal system in Ireland two questions need to be answered. How should the best interests of children be ascertained? And, to what extent should the court give effect to constitutional rights that conflict with these best interests? What is in an individual child’s best interest will differ from case to case. The court  should consider all the evidence presented to the court including evidence from social workers, and child psychiatrists. For example, in a particular case the child might have formed a strong attachment to his grandparents who have been caring for him on a day to day basis and are well equipped to continue to do so. Moving the child back to parental custody would cause medium term trauma to the child.

In Irish law, children’s interests are currently protected by constitutional rights to welfare under Article 42 and Article 40.3 (identified in cases such as G v An Bord Uchtála and Nicolaou v An Bord Uchtála) and the requirement under section 3 of the Guardianship of Infants Act, that the court must make the child’s welfare the first and paramount concern in cases involving the child’s upbringing.  In spite of these legislative and constitutional protections for children, the court must also give effect Continue reading “The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System”

The Children's Referendum: The Constitutional Amendment will not Create a truly Child Centred Legal System

Legal Analysis of the Children's Referendum: Article 42A.1

Dr Conor O’Mahony is a lecturer in law in the Faculty of Law, University College Cork.

The proposed Article 42A.1 provides

The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

Its stated intention, in the words of the Minister for Children, Frances Fitzgerald, is to “provide, for the first time, a strong affirmation of the rights and protections to be enjoyed by children as children.” This opening gambit in the proposed Article on Children, while brief, contains a number of elements that merit close examination.

The first point to note is that the “natural and imprescriptible rights” of children are currently referenced in the Constitution (in Article 42.5, which will be deleted and replaced). In G v An Bord Uchtála [1980] I.R. 32, the Supreme Court made an initial stab at expanding on the content of these rights, but this task was never continued in any subsequent case law.

A limitation of the current framework is that Article 42.5 only mentions children’s rights indirectly as something that the State must have due regard for when intervening to supply the place of parents who have failed in their duties towards their children. The existing framework is premised on the concept of State subsidiarity in family affairs, and places the State under no direct obligation to protect the rights of children as long as parents are adequately performing their functions. The obligation is a default one that arises only in exceptional cases.

The amendment, if passed, will shift the Continue reading “Legal Analysis of the Children's Referendum: Article 42A.1”

Legal Analysis of the Children's Referendum: Article 42A.1

The Children's Rights Referendum: November 10th 2012

The wording of the Children’s Rights Referendum has been published. The proposal seeks to insert Section 42A into the Irish Constitution. The wording is as follows:

Proposed Article 42A

1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2.   1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3. Provision shall be made by law for the voluntary placement Continue reading “The Children's Rights Referendum: November 10th 2012”

The Children's Rights Referendum: November 10th 2012

The kids are all right? The case for constitutional reform.

We are delighted to welcome this guest post from Edel Quinn. Edel is a member of the Legal and Policy team at the Children’s Rights Alliance.  The Alliance is a coalition of over 100 organisations working to secure the rights of children in Ireland, by campaigning for the full implementation of the UN Convention on the Rights of the Child.  It aims to improve the lives of all children under 18, through securing the necessary changes in Ireland’s laws, policies and services.

The referendum on a constitutional amendment on children’s rights is just around the corner.  Holding the referendum on Saturday 10 November 2012 is a welcome development and will allow young people in particular the opportunity to travel home to vote and ensure that children do not miss out on a day of school.  With the wording of the proposed amendment and accompanying adoption legislation expected to be published later today, in this post we explore the key issues at the heart of the debate and the potential impact of change.  One of the founding objectives of the Children’s Rights Alliance when it was established 17 years ago was to seek an amendment to the Constitution of Ireland to strengthen the rights of children.  The Alliance has engaged in extensive advocacy on this issue in particular over the last six years since the publication of its second shadow report on Ireland to the UN Committee on the Rights of the Child in 2006.

Continue reading “The kids are all right? The case for constitutional reform.”

The kids are all right? The case for constitutional reform.