Rules requiring professionals to breach confidentiality and inform the police about young people believed to be in sexual relationships are likely to breach the European Convention on Human Rights, according to legal advice obtained by a number of children's charities.
For several months, professionals in the field have been protesting about data sharing protocols produced by the Sheffield and Pan-London Area Child Protection Committees which have been promoted by the Government as models which other Child Protection Committees should follow. The protocols state that professionals must carry out full personal assessments on anyone under 18 who is in a sexual relationship, share information about that young person with other professionals and, in many cases, inform the police of under-age sexual activity. In October, more than 20 bodies, including the British Medical Association and teachers' and youth organisations, released a joint statement criticising the protocols and expressing concern that the Government may adopt these protocols as national policy. They point out that reporting sexual activity to the police would, in practice, increase the occurrence of sexually transmitted disease and increase the number teenage pregnancies because young people would be reluctant to seek advice on sexual matters. The Parliamentary Joint Committee on Human Rights (JCHR) has already said that the operation of databases which are intended to improve data-sharing between professionals in relation to child protection are likely to breach the obligation, placed on all public authorities, to show respect for an individual's private and family life. One reason for this potential breach of the principle enshrined in Article 8 of the European Convention on Human Rights is that the Government intends to permit the sharing of details of all children under 16 years old, irrespective of whether or not the child is at risk. In some cases, the provisions apply to under-18s. The JCHR wrote in its report, published last September: "The creation of databases containing personal information and providing for its disclosure to third parties involve serious interferences with the right to respect for private life in Article 8 which must be strongly justified". In the case of the Children's Act, it concluded: "Parliament is being asked to authorise in advance a major interference with Article 8 rights without the evidence demonstrating its necessity being available." The JCHR recommended then that Governments, in relation to any bill, should: "identify the Convention rights and any other human rights engaged by the bill"; identify the "specific provisions of the bill which engage those rights"; and "explain the reasons why it is thought that there is no incompatibility with the right engaged". Dr. Chris Pounder, a privacy law specialist with Pinsent Masons and editor of Data Protection and Privacy Practices, commented: "The Government has failed to implement or to respond to this recommendation. This has meant that human rights questions in relation to its child protection, ID Cards and anti-terrorism strategies largely go unresolved." According to Stephen Grosz, a partner with law firm Bindmans who produced the new advice, it is difficult to justify automatic referral to the police. He added that the protocols “do not set out clearly that police checks, referral and assessment take place only in cases where intervention may be necessary to prevent significant harm," adding that "there appears to have been little or no attempt to set out the factors which might be taken into account in striking the necessary balance.” He said that the protocols “do not set out with any precision the safeguards which are to apply to the recording, exchange and dissemination of information held by the relevant agencies. In particular it is not clear who will have access to the data which will be held by the police, and under what conditions”. Mr Grosz concluded that the routine assessment on all under-18s involves a disproportionate interference with their right to respect for their private life.
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