Effective and Appropriate Data Protection

Article 16 of the Convention on the Rights of the Child (CRC) states that a child’s right to privacy should be respected. Article 40 of the CRC specifically requires that a child involved in criminal proceedings must have their right to privacy respected at all stages of the proceeding. In Article 22 oft he Convention on the Rights of Persons with Disabilities, States are required to protect all persons with disabilities, including children with mental disabilities, against unlawful or arbitrary interference with their privacy.

In addition to these broad international standards, the EU has produced more detailed guidance on how personal information must be handled, stored and published. The main EU data protection regulations are EU Directive 95/46/EC and EU Directive 2002/58/EC. More information on these standards is available from the Fundamental Rights Agency of the European Union: Handbook on European Data Protection Law.

Article 2 of EU Directive 95/46/EC defines personal data as “any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.” A working party established by the EU has also produced an opinion on the protection of children’s personal data under this directive. The opinion cites the best interest of the child as a primary concern, stating that ‘‘a child’s immaturity makes them vulnerable, and this must be compensated by adequate protection and care. Second, the child’s right to development can only be properly enjoyed with the assistance or protection of other entities and/or people.’’ This opinion also discusses the competing interests at play in recognizing a child’s right to privacy while promoting the best interest of the child.

New data protection rules are due to be adopted in 2015 by the EU. The new proposed directive changes the definition of child to better reflect the Convention on the Rights of the Child and requires that any communication to a child about their data must be in clear language that would be easily understood by a child. If passed, the new directive will also require parental consent prior to the processing of data concerning children under the age of 13.

International media organizations and children’s rights organizations have clear guidelines on the type information about children which should be included in news publications. The International Federation of Journalists (IFJ) has several key guidelines on the obligations of journalists to protect children’s data. This guidance states that journalists should “guard against visually or otherwise identifying children unless it is demonstrably in the public interest.” The IFJ has also highlighted the importance of not identifying child victims in particular in reporting. Some countries like the UK have codified these principles into law. In the UK the court may require that no information that could lead to the identification of a person under 18 involved in criminal proceedings.

Data protection regarding children in other contexts such as detention centres or schools often also carry different and specific concerns that are discussed in international or European guidelines. These contexts are particularly relevant for children with mental disabilities.

The UN has produced rules on how children deprived of their liberty should be treated, which includes rules on data protection and privacy. These rules require privacy for communications between a child and their legal representative and their family. The rules also require that those working in juvenile detention centres should‘safeguard all confidential matters concerning juveniles or their families learned as a result of their professional capacity.’ Unicef has also produced a policy analysis document that addresses this issue as well as data protection during criminal justice proceedings.

Children involved in court proceedings have a special entitlement to privacy throughout the proceedings unlike adults in court proceedings. Unicef has suggested that laws and regulations needed to effectuate this right in a guidance paper {link to bibliography 1.3.6 Carolyn Hamilton Guidance for Legislative Reform on Juvenile Justice}. It advocates for States to enact laws that prohibit the state from issuing any information about children in conflict with the law that would lead to the identification of such children. It also calls for laws that prohibit media from reporting any information that could potentially lead to the identification of such children.

The EU working group opinion has set out specific policy considerations for sharing data of children in the context of a school environment. It states that schools must inform the child (data subject) who the data controller is, why their data is being collected and for how long the data will be held. In relation to children with mental disabilities the opinion denotes medical treatment and special education of disabled people as data that requires heightened levels of security.

Although children are entitled to privacy and data protection, these rights are not absolute. There is a general understanding that information of a child may be shared when it is in that child’s best interests. The Article 29 Working group opinion states that there may be times when the best interests’ may trump a child’s privacy rights:

‘This is particularly the case with medical data, where, for example, a youth welfare service may require relevant information in cases of child neglect or abuse. Similarly, a teacher may disclose a child’s personal data to a social worker in order to protect the child, either physically or psychologically. In extreme cases, the principle of the best interest of the child can also come into conflict with the requirement for the consent of their legal representatives. The best interest must also here be preferred – for instance if the mental or physical integrity of the child is at stake.”

The ways in which this balance is addressed will vary from country to country, so it important for professionals to have access to accurate information about data protection and privacy laws in their own country.

The issue of parental involvement when a child is subject to administrative, civil and criminal proceedings is a complex one. The Council of Europe Guidelines state that parents of children must be informed when children are arrested, given the reason for the arrest and asked to come to the police station. Laws may vary from country to country on whether or not the parent is required to be present for the questioning of a child victim, witness or alleged offender. The Council of Europe Guidelines also state that children should be entitled to their own legal representation and considered ‘fully fledged clients in their own with their own rights.’

The CRC’s General Comment 10 recommends that parents are present at proceedings but cautions that they should not be involved in the decision making process and suggests that at times it may be in the best interests of the child to exclude the parents from the proceedings. In keeping with the Council of Europe Guidelines and the Convention on the Rights of the Child, legal and law enforcement professionals should ask the child whether or not they want their parent present for questioning and during the whole proceeding, where children are involved as victims, witnesses or offenders.

It is vital that professionals have accurate information on data protection and privacy law – and how this law relates to children with mental disabilities – in order to ensure effective access to justice for these children. Some key skills which are necessary to ensure effective and appropriate data protection include respect for the voice of the child in determining what information the child wants to share, the ability to properly apply the ‘best interests’ principle in sharing information about the child, and an understanding of the balance between parental rights and the rights of the child when including parents in civil, criminal and administrative proceedings involving a child with mental disabilities.