Getting it right for every child (GIRFEC) Practice Guidance 4 - Information sharing

Annex E - Article 8 ECHR – Two Part Test

Part 1 of the test: Is the interference “in accordance with the law”?

In order for the interference to be in accordance with the law, you must consider the following:

• In your opinion, could sharing the information for example, protect the physical, mental or emotional wellbeing of the child?
• Can you share this information in a way that complies with data protection legislation?
• Have you complied with all other relevant laws such as the law of confidentiality?

Part 2 of the test: Is the interference “necessary in a democratic society”?

You must consider if the interference is necessary to achieve one of the legitimate aims set out in Article 8. One clear example of a legitimate aim is where data is shared for the purposes of safeguarding a child.

You also need to consider whether it is proportionate to share the information. This means you have to weigh up the importance of ensuring the child or parent’s rights are respected against the importance of achieving the “legitimate aim” (for example, for safeguarding purposes). The impact on the person’s ECHR rights must not be out of proportion to the benefit you are sharing information to achieve. If there is an another option, which has less of an impact on their right to privacy but still achieves the aim, then you should take that option. You should only share the information that is relevant to achieving the legitimate aim.

If you believe that a child or young person needs to be protected from neglect or physical, mental or emotional harm you should have a basis for justifying a breach of the child’s Article 8 ECHR rights.

You should record your actions and the reasons for them.