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

6. Rights of the child

The GIRFEC approach is based on the UNCRC and puts the rights of the child at the heart of good practice.

The Scottish Government proposes to incorporate the UNCRC and First and Second Optional Protocols to the maximum extent possible into Scots law.

Article 12 of the UNCRC states every child and young person who is capable of forming his or her own views has the right to express those views freely in all matters affecting him or her, with those views being given due weight in accordance with the age and maturity of the child and young person.

In order to fulfil the rights under Article 12 where children and young people’s views are not known on a matter that is likely to have an impact on them, those delivering public services should take steps to obtain their views. Therefore, Article 12 must inform the approach to participation of children and young people within the GIRFEC model.

A child or young person’s capacity includes, among other things, their ability to understand different choices and make decisions. As children and young people grow and develop, they tend to develop the ability to make more decisions for themselves. In the UNCRC, this is referred to as a child’s “evolving capacities”. Children’s capacity develops gradually, and it doesn’t happen at the same speed for everyone – it depends on things like their experiences, education and maturity, as well as the complexity and magnitude of the decision being made.

There is no lower age limit on the right of the child or young person to express their views. Those seeking to understand the views of children and young people should give due consideration to the evolving capacity of the child or young person. It is not up to the child or young person to prove their capacity. A child is able to form views from pre-verbal stages.

Implementation of Article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, drawing and painting, through which very young children demonstrate understanding, choices and preferences.

Under the Education (Additional Support for Learning) (Scotland) Act 2004, children (aged 12-15) and young people (aged 16+) with additional support needs may have specific rights. These rights seek to ensure that children and young people can ask for their additional support needs to be identified and planned for; receive advice and information about their additional support needs; be fully involved in discussions and decisions about the support that they will receive; and access dispute resolution procedures to resolve concerns.

Children and young people have the same rights as adults over their personal information and where they are deemed to be to competent to do so, are able to exercise their own data protection rights. More detailed guidance is available in Children and the GDPR. Data protection legislation provides that in Scotland, children aged 12 or over are presumed to be mature enough to provide their own consent or exercise the rights conferred by data protection legislation, unless there is any reason to think that they are not.

In many circumstances, the sharing of information about a child or young person will be permitted without having to obtain the consent of the relevant child or young person.

In the interests of openness and transparency, as explained in section 5.4 (Should the child, young person or family be asked for their views?) and 5.5 (Should the child, young person or family be informed?) children, young people and families should be supported to fully participate in discussing how sharing information could support the child or young person’s wellbeing. Their views should be taken into account and given due weight in accordance with their age and maturity, as part of any decision making process. However, in some circumstances, this may not be appropriate.

The child, young person or their family should at least be informed about what information about them is being shared, with whom and why this is necessary, unless you have justifiable and lawful reasons for disclosing a child or young person’s information without their knowledge.