Technology and the Rights of the Child

Its example is worth setting out because it is the clearest case in the whole Comment. Where parents decide not to have their children vaccinated on grounds the scientific community considers false, the parents' decision entails risks for the child and sometimes for society, from the possible resurgence of infectious diseases previously under control. In these cases the best interests of the child must be a primary consideration.

Paragraph 44 continues with two propositions that bear on children and on others: that people may be subject to great pressure from their social environment to undergo traditional treatment rather than benefit from the best available medical attention, and that States must guarantee everyone the right to choose or refuse treatment with full knowledge of the risks and benefits, subject to limitations meeting the criteria of article 4; and that States must establish protective measures in relation to messages from pseudoscience, which create ignorance and false expectations among the most vulnerable sectors of the population.

The Convention, named and placed

The Convention on the Rights of the Child of 1989 is the instrument that governs this area, and it is the most widely ratified human rights treaty there is. General Comment 25 relies on it, citing at footnote 12 particularly its articles 24 and 29, in support of the proposition in paragraph 38 about children in poverty, scientific education and the development of the child's abilities to their fullest potential.

Two things follow.

What can be said. The Convention is the governing instrument; the Committee treats it as directly relevant to the enjoyment of the right to science by children; and the standard of the best interests of the child, which paragraph 44 applies, is the Convention's central principle.

What this book will not do. The Convention is not in this subject's authority base, so no article of it is quoted here and none is paraphrased. A candidate should do the same: name it, state what the Committee draws from it, and avoid reciting article numbers that have not been read. That is a stronger answer than a confident but unsourced list, and it is the discipline this book applies to every instrument it does not hold.

The Indian provisions

Article 21A: free and compulsory education for children of six to fourteen, discussed in [Education and the Diffusion of Knowledge].

Article 24: no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. It is a fundamental right and it is directly a technology provision, since the hazard it addresses is industrial.

Article 39(e): the State shall direct its policy towards securing that the tender age of children is not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 39(f): that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment.

ICESCR article 10(3) requires special measures of protection and assistance on behalf of all children and young persons, and requires States to set age limits below which the paid employment of child labour is prohibited and punishable. Article 12(2)(a) requires steps for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child.

Worked example

A State proposes that every school pupil be issued a tablet preloaded with an application that records attendance, monitors reading progress and reports both to a central education database, retained until the pupil turns twenty-five. Parents consent on enrolment by signing a general form.

The benefit is real and should be stated. Article 15(1)(b) gives the child an interest in what science has made available, and paragraph 38 requires pedagogical tools and quality scientific education, particularly for children in poverty. An answer that treats the scheme as simply objectionable has ignored half the framework.

Consent. The child has not consented and cannot. The parent has consented, in general terms, at a moment when refusal would have meant not enrolling in school. Consent given as the price of a compulsory service is not free, and paragraph 44 is the provision that lets a State's obligation be asserted against the family's decision rather than through it.

Whose interests. The best interests of the child are a primary consideration. The interests served by retention until twenty-five are administrative, and the child's interest in not carrying a school record into adult life points the other way.

Duration. Retention for a decade after the child leaves school is the point at which the scheme fails proportionality most clearly, because the purpose that justifies collection expires long before the retention does.

Equality. Paragraph 38 requires attention to children living in poverty, particularly those with disabilities. A device-based scheme distributes by household, so a child without power at home is monitored as absent rather than assisted, and the tool that was meant to include them records their exclusion.

What survives. The tablets, the teaching application, and progress data held by the school for the school year. What does not survive is central retention to twenty-five on a consent the child never gave.

What it does NOT mean

It does not mean children should be kept away from technology. The Committee's demand is for access: pedagogical tools and quality scientific education, especially for children in poverty and children with disabilities. Exclusion is the harm paragraph 38 is directed against.

It does not mean parental consent is worthless. It is ordinarily the mechanism by which a child's rights are exercised. Paragraph 44 identifies the exception, where the decision made for the child is contrary to the child's interests on grounds the scientific community considers false.

Best interests is not the same as the child's wishes, and it is a primary consideration rather than the only one. The Committee's own example, vaccination, is a case where the standard operates against a decision made within the family and in favour of the child and of others.

And a child's inability to consent does not license intervention. The rule in [Bodily Integrity and Intervention Without Consent] applies: where a person cannot consent, the intervention needs authority, a best-interests basis and, in research, direct health benefit save by narrow exception.

Quick revision

• Children are treated separately because the conditions of exercising rights are absent: no capacity to consent, no ability to assess risk, dependence on adults, and a longer remaining exposure.
• General Comment 25, paragraph 38: measures so that children living in poverty, particularly those with disabilities, have full access; they are entitled to special care and assistance, through pedagogical tools and quality scientific education developing the child's personality, talents and mental and physical abilities to their fullest potential. Footnote 12 cites the Convention on the Rights of the Child, particularly articles 24 and 29.
• Paragraph 44: States may have to protect people within their familial, social or cultural context; those who cannot choose for themselves by reason of age or capacity need special protection; where parents refuse vaccination on grounds the scientific community considers false, the best interests of the child must be a primary consideration. Also: the right to choose or refuse treatment with full knowledge of risks and benefits, and protective measures against messages from pseudoscience.
• Constitution: article 21A (education six to fourteen), article 24 (no child under fourteen in a factory, mine or hazardous employment), article 39(e) and (f).
• ICESCR article 10(3) (special measures, age limits for paid employment), article 12(2)(a) (infant mortality and the healthy development of the child).
• The Convention on the Rights of the Child is not in this book's base: name it, say what the Committee draws from it, quote nothing.

Test yourself

1. Why does the framework treat children separately, given that they hold the same rights? Because the conditions on which rights are exercised are absent or impaired. A child lacks the legal capacity to consent, so the ordinary licence for intervention is unavailable; lacks the information and experience to assess a risk, particularly one that will mature years later; is dependent on adults whose interests may diverge from theirs; and has a longer remaining lifetime over which a harm can operate, so that data collected or a decision recorded now continues to affect them into adult life. The rights are the same; what differs is the person's ability to invoke them, which is why the framework supplements them with special protection and with the standard of the best interests of the child.

2. Set out paragraph 44 of General Comment 25 and explain why it is significant that it addresses the family. It states that States parties may sometimes have to protect people within their own familial, social or cultural context where their right to participate in and enjoy the benefits of scientific progress is affected, and that persons who cannot choose for themselves by reason of age or capacity must receive special protection. Its example is that where parents decide not to have their children vaccinated on grounds the scientific community considers false, the decision entails risks for the child and sometimes for society through the resurgence of infectious diseases previously under control, and that in such cases the best interests of the child must be a primary consideration. It is significant because human rights law ordinarily treats the family as the child's protection and the State as the potential threat. Here the Committee accepts that the decision made within the family can itself be the interference, which supplies the basis for a State obligation asserted against the parent's decision rather than exercised through it.

3. What does paragraph 38 require, and which treaty does the Committee rely on for it? It requires States to adopt measures ensuring that children living in poverty, particularly those with disabilities, have full access to the enjoyment of the right to participate in and enjoy the benefits of scientific progress and its applications, on the footing that they are entitled to special care and assistance, especially through pedagogical tools and quality scientific education that allow the development of the child's personality, talents and mental and physical abilities to their fullest potential. The Committee cites the Convention on the Rights of the Child, particularly its articles 24 and 29, at footnote 12.

4. How should a candidate handle the Convention on the Rights of the Child on this paper, if they have not read its text? By naming it and placing it rather than reciting it. The correct statement is that the Convention of 1989 is the governing instrument for children's rights and the most widely ratified human rights treaty, that General Comment 25 relies on it for the proposition in paragraph 38 and cites particularly its articles 24 and 29, and that its central principle, the best interests of the child, is the standard the Committee applies in paragraph 44. What should not be done is to attribute numbered provisions to it from memory, since an article number recalled rather than read is the commonest way an otherwise sound answer becomes inaccurate, and the argument can be made in full from the Comment, which is available.

5. A school scheme monitors pupils through issued devices and retains the data until they are twenty-five, with a general parental consent given on enrolment. Identify the three strongest objections. First, consent: the child has not consented and cannot, and the parent's consent was given in general terms at a moment when refusal meant forgoing schooling, so it is not free in the sense the framework requires, and paragraph 44 permits the State's obligation to be asserted against a decision made within the family. Second, duration and purpose: the justification for collection is educational and expires when the pupil leaves school, whereas the retention continues for years afterwards, so the measure fails proportionality at the point where purpose and retention diverge. Third, equality: paragraph 38 requires particular attention to children living in poverty and to those with disabilities, and a device-based scheme distributes by household, so a child without reliable power or connectivity is recorded as absent rather than assisted, and a tool intended to include them documents their exclusion instead.