Vaccination: A Child’s Right?

One of the big cultural differences between the US and most of Europe is the nature of the legal relationship between parents and children. Broadly, US law and public debate tends to treat children as a form of property, owned by parents who have a very broad discretion to make choices about their health, education and social life. On this side of the Atlantic, family law tends to treat parents as stewards or trustees for their children. Like any other trustee, they are supposed to set aside their personal beliefs and preferences to act in the specific interest of their child. This gives rise to a more expansive notion of children’s rights, of the duties of parents to respect these, and of the role of the state in supervising parental behaviour.

These are the words of a senior English appeal judge in 1893
“The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner which a wise, affectionate and careful parent would act for the welfare of the child. The natural parent in the particular case may be affectionate, and may be intending to act for the child’s good, but may be unwise and may not be doing what a wise, affectionate and careful parent would do. The Court may say in such a case that, although they find no misconduct on the part of the parent, they will not permit that to be done with the child what a wise, affectionate and careful parent would not do…The Court has to consider what is for the welfare of the child and for her happiness.”
In the particular case, the court refused to order a child’s return from a long-established private fostering arrangement at her mother’s request in the face of opposition from both the child and the foster parents.

This approach has been challenged from time to time by parents seeking greater control over the lives of their children but consistently sustained. In recent years, for example, the courts have established a right for children to make medical decisions on their own behalf, consistent with their age and understanding, regardless of the views of their parents. Where children are not considered competent, the courts may substitute their analysis as in a number of cases where there have been disagreements over the withdrawal of treatment from infants with life-limiting conditions.

The model of the state as ‘supreme parent’ has given rise to an institutional system for the surveillance of families that can make immigrants from the US profoundly uncomfortable. I remember a conversation some years ago with a US academic who had been told that refusal to allow access to her home by a visiting nurse (health visitor) might lead to a child protection investigation. She was profoundly shocked by this and, I believe, eventually chose to return to the US rather than live with the UK system. We are currently moving to regulate home schooling more closely because this has proven to be a gap in the surveillance of older children, leading to concerns about both safeguarding and education. Home schoolers may vary curriculum and pedagogy but they will be registered and inspected. Their children have a right to the same degree of protection and attainment as those in ‘mainstream’ education.

Within this context, it is possible to frame an argument that vaccination is a right of the child rather than a choice of the parents. If it is accepted that childhood vaccines are firmly established as safe and effective in preventing death and disability, then it is hard to see that a ‘wise, affectionate and careful parent’ can have legitimate grounds for withholding them. We already partially accept this with HPV vaccines for teenagers, where parental consent is treated as desirable rather than essential. In many European countries cervical cancer is well on the way to extinction as a result, and there also seem likely to be significant reductions in oral cancers. The recognition of this right does not necessarily lead to mandates and coercion but it does justify considerable pressure on parents to fulfil their corresponding duty. There will always be a very small number of cases where faith-based communities object to vaccination or where it is immunologically undesirable for a particular child. By minimising these cases, the state can ensure a high degree of protection for those specific children through the general level of population immunity. The children’s rights to protection are respected without requiring confrontations with parents.

Liberal democracies always have to strike a balance between accepting a degree of diversity in family life and the protection of less powerful members, particularly children who lack access to the public sphere to enlist defenders. It is, however, worth asking whether US children are well-served by an obsession with exclusive parental rights to control choices like vaccination given the foreseeable risk to their lives, health and well-being.