United Kingdom Supreme Court
28 July 2016
Article 3: Best interests of the child
Article 5: Parental guidance and the child’s evolving capacities
Article 14: Freedom of thought, conscience and religion
Article 16: Protection of privacy
Article 18: Parental responsibilities
Article 19: Protection from abuse and neglect
Article 27: Standard of living
Other international provisions:
European Convention on Human Rights (“ECHR”), Article 8: Providing for and protecting the right to privacy and respect for family life
Children and Young People (Scotland) Act 2014, Sections 23, 26, 27 and 96(2)
Revised Draft Statutory Guidance on the Children and Young People (Scotland) Act 2014
Data Protection Act 1998 (“DPA”) Directive 94/46/EC
Four charities and three individual parents challenged the lawfulness of the data sharing and retention provisions in the Children and Young People (Scotland) Act on the grounds that they: (i) relate to “reserved matters” addressed by the Data Protection Act and Directive; (ii) violate Article 8 of the ECHR; and (iii) violate EU law. The ECHR claim alleged that: (i) the Act’s compulsory appointment of a named person to a child breached the parents’ Article 8 rights unless they consent or unless the appointment is necessary to protect the child from significant harm, and (ii) the data sharing provisions of the Act violate the child’s Article 8 right to privacy.
Issue and resolution:
Right to privacy. The data sharing provisions of the legislation violated the right to privacy under Article 8 of the ECHR. The Court recommended changes to improve the accessibility of the rules and safeguards to ensure that the proportionality of any interference with the right to privacy could be challenged and assessed.
Reserved Matter Challenge
The court recognized that the DPA “contains provisions which confer exemptions from some of its requirements where they are inconsistent with another enactment, or which treat some of its requirements as satisfied where disclosure is necessary for compliance with a statutory obligation.” The court attempted to harmonise the Act with the DPA and Directive, and although it noted that this was a very difficult process and required clarification, the court found that the Act’s disclosure provisions concerning sensitive data “must be understood as being conditional upon compliance with at least one of the conditions in Schedule 3 to the DPA, and therefore as being subject to more stringent criteria than those which appear on the face of the 2014 Act.” Disclosure duties in sections 23 and 26 of the Act “cannot be taken at face value” because they are “significantly curtailed by the requirements of the DPA and the Directive.”
The 2014 Act aimed to address a “weakness” in existing law whereby “information was not shared until the stage had been reached where a child or young person was at risk of harm.” The 2014 Act addressed this by ensuring that information is shared between the relevant agencies before that stage is reached, in order to promote the “wellbeing” of children. Nevertheless, because sections 23(7) and 26(11) of the Act provide that “Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law,” the Court found that Part 4 of the Act does not detract from the DPA or the Directive and, accordingly, does not “relate to the subject-matter of the DPA and the Directive.”
The court observed that Article 8 of the ECHR protects the right of privacy as well as the rights of parents to exercise parental authority with regard to the care and upbringing of their children.
With respect to privacy, “ Article 8 protects confidential information as an aspect of human autonomy and dignity.” Because the sharing of personal data between relevant public authorities “is central to the role of the named person”, the court concluded that the information sharing provisions of Part 4 of the Act would interfere with rights protected by the ECHR.
Such interference, however, is not problematic if it is “in accordance with the law,” i.e. if it has a basis in domestic law and is comprehensible to the public with foreseeable effects. The law must also be “sufficiently precise to give legal protection against arbitrariness.” However, the court found that there is no statutory requirement to inform the parents of a child about the sharing of information, making it possible that information including confidential information concerning a child or young person’s state of health could be disclosed under 26 to a wide range of public authorities without that person being aware of the interference with their Article 8 rights. Having concluded that the Act interfered with Article 8 rights, the court then concluded that “the sharing and exchange of information between public authorities are likely to give rise to disproportionate interferences with Article 8 rights unless the information holder carries out a scrupulous and informed assessment of proportionality.”
The court recognised that Part 4 of the Act pursued “legitimate aims,” was “rationally connected” to those aims, and that it would not necessarily give rise to disproportionate interferences with the ECHR in all cases. “Nevertheless, there must be a risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered, especially in pursuance of a child’s plan for targeted intervention under Part 5; and further, that their failure to co-operate with such a plan will be taken to be evidence of a risk of harm.” Because such compulsion, whether express or implied, could interfere with the right to respect for family life, care should be taken to emphasise the voluntary nature of the advice, information, and support offered by the Act.
The court found that the Act had a “more relaxed approach to disclosure than is compatible with Article 8” and created “too low a threshold for disclosure . . . and for the overriding of duties of confidentiality in relation to sensitive personal information.” In particular, the court found problematic the Act’s lack of any provision “imposing even a qualified requirement that the child or young person or her parents be warned that confidential information may be disclosed, or informed after the event that it has been shared.” Absent such safeguards, the overriding of confidentiality protections “is likely often to be disproportionate.”
The court stated: “In order to reduce the risk of disproportionate interferences, there is a need for guidance to the information holder on the assessment of proportionality when considering whether information should be provided. In particular, there is a need for guidance on (a) the circumstances in which consent should be obtained, (b) those in which such consent can be dispensed with and (c) whether, if consent is not to be obtained, the affected parties should be informed of the disclosure either before or after it has occurred. Also relevant is whether the recipient of the information is subject to sufficient safeguards to prevent abuse.” “In short, changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed.”
Excerpt citing CRC and other relevant human rights
72. As is well known, it is proper to look to international instruments, such as the UN Convention on the Rights of the Child 1989 (“UNCRC”), as aids to the interpretation of the ECHR. The Preamble to the UNCRC states: “the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.” Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus Article 3(2) requires States Parties, in their actions to protect a child’s wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; Article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; Article 14(2) makes similar provision in relation to the child’s right to freedom of thought, conscience and religion; Article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child’s development; Article 18(1) provides that: “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.” (Emphasis supplied) Articles 27(3) and 18(2) make it clear that the state’s role is to assist the parents in carrying out their responsibilities, although Article 19(1) requires the state also to take appropriate measures to protect the child from all forms of abuse or neglect.
73. This represents the detailed working out, for children, of the principle established in Article 16(3) of the Universal Declaration of Human Rights and Article 23(1) of the International Covenant on Civil and Political Rights that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the state”. There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies. The noble concept in Article 1 of the Universal Declaration, that “all human beings are born free and equal in dignity and rights” is premised on difference. If we were all the same, we would not need to guarantee that individual differences should be respected. […]
74. Thus it is not surprising that the ECtHR, in Neulinger and Shuruk v Switzerland (2012) 54 EHRR 31, interpreted Article 8 in the context, among other instruments, of the UNCRC and explained the concept of the child’s best interests in this way: “The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to ‘rebuild’ the family (see Gnahoré, cited above, para 59). On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Elsholz v Germany (2002) 34 EHRR 58 at , and Maršálek v the Czech Republic, no 8153/04, at , 4 April 2006).” (para 136)
75. The privacy of a child or young person is also an important interest. Article 16 of the UNCRC provides:
“1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.” The concept of “private life” in Article 8 covers the disclosure of personal data, such as information about a person’s health, criminal offending, sexual activities or other personal matters. The notion of personal autonomy is an important principle underlying the guarantees of the ECHR. See, for example, Gillan v United Kingdom (2010) 50 EHRR 1105, para 61.
The parties have until September 8, 2016 to produce written submissions on the terms of a Section 102 order to allow Scottish Parliament and Ministers an opportunity to correct the defects in the Act. Court explanation of decision: https://www.youtube.com/watch?v=mtU2WheQfTw
CRIN believes this decision is compatible with the CRC. It is important that attempts to protect children take into account their rights to privacy, and for laws to be strengthened and made accessible in order to prevent unlawful interferences with these rights.
 UKSC 51
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.