UNCRC v GDPR v Parental Involvement: With children stuck in the middle

The United Nations Convention on the Rights of the Child was incorporated into Scottish domestic law in June 2024. Challenges to decisions made by public authorities based on the new Act are now surfacing in courts and tribunals. The competing rights of GDPR, for example, and UNCRC will take some time to clarify, especially as applied between children, schools and parents.

In an Opinion of the Sheriff Appeal Court earlier this month, Sheriff Derek O’Carroll, ordered East Dunbartonshire Council to compensate a father for mishandling his personal data.

That Opinion, taken with the recent Upper Tribunal decision by Lady Poole in City of Edinburgh Council and SP Decision (Appeal) [AP] is a marker that the courts are going to resolve UNCRC disputes in contexts probably never imagined by MSPs during their scrutiny of the legislation.

Sheriff O’Carroll suggested in his Opinion that the data protection issue before him (internal local authority messaging about a child at school) is “unusual”. Casework at Shared Parenting Scotland indicates otherwise. GDPR practices are regularly in conflict with the principle embodied in the Scottish Schools (Parental Involvement) Act 2006 that separated parents are entitled to their own relationship and information flow from their child’s school. Parental Involvement was set down in legislation and the statutory guidance that accompanied it because is deemed to be generally beneficial for children and schools.

We have had several recent examples in which local authorities have refused to tell one parent which school their child is attending on GDPR grounds. The situation arises when the other parent has enrolled the child in a new school without telling them. It is difficult to establish the kind of supportive relationship envisaged by the Scottish Schools (Parental Involvement) Act with a new school without knowing where it is. GDPR in these examples has become a barrier to parental involvement.

In UNCRC terms, it is not clear in such cases whether the child has been asked for their view – or even informed that an issue has arisen – leading to the sudden disappearance of the other parent from the school community.

When principles collide – parental involvement on one hand, and GDPR on the other – schools despair and support for the learning of some children suffers. UNCRC incorporation is now adding to the joy of life in local authority legal services departments. The response of some is to err on the side of caution. “GDPR says no!”

In her decision, Lady Poole overturned an earlier lower tribunal decision in favour of the child, SP, on the basis it had no jurisdiction to apply the UNCRC in determining the claim. However, in her narrative of the wrangle between the Council and SP (rendered redundant by her decision on jurisdiction) it is clear there are issues in where UNCRC incorporation will change the prism in which rights and obligations will be balanced.