All schools have an obligation to ensure the safety of the students whilst in their care. This includes having to mitigate the risk of a privacy breach by securing information that is stored and limiting who it is shared with. This can be more complicated when there are Court orders in place like parenting orders and protection orders. In addition to general personal information, each student may have a different living circumstance and varying degrees of safety requirements in regard to their care
In this article, we aim to help schools understand and navigate court orders, while complying with their obligations under the Privacy Act 2020.
Privacy Act obligations
Principle 4 of the Privacy Act specifically requires that agencies take particular care when they are collecting information from children and that they do so in a way that is fair and reasonable.
An individual has the right to access to access their own personal information.
Children have the same rights as anyone else to request their information, authorise collection of their information or complain about the disclosure of their information.
However, there can obviously be issues with taking this approach when dealing with very young children who simply aren’t able to act on their own behalf. In those kinds of cases, we recommend schools take a practical approach and consider whether the child’s parent/s or guardian/s are acting as the child’s representative.
There is a specific withholding ground which allows an agency to refuse a request for information made by, or on behalf of a child under the age of 16, where the release of the information would be contrary to that child’s interests.
There is also a provision in the Health Information Privacy Code 2020 that allows parents and guardians to request their child’s health information, if the child is under 16.
This right to a child’s personal information is not absolute, you may withhold the child’s health information if:
- You have reasonable grounds to believe the child does not want their information to be given to them;
- You believe it would be contrary to the child’s best interests for them to have the information; or
- Any of the other refusal grounds in sections 49 – 53 of the Privacy Act 2020 apply.
This only applies to health information held by a health agency, and while there is no equivalent right in the Privacy Act for a parent to request their child’s personal information, in general, guardians of children under the age of 16 are viewed as representatives of the student and have access to the personal information, on behalf of the student.
Generally, an individual does not have the right to request information about other people
For example, if information about the requester also includes information about other people , you must protect the privacy rights of others by redacting or removing their personal information.
Disclosure by a school in terms of the Privacy Act 2020 is permitted when:
- The disclosure of the information is one of the purposes in connection with which the information was obtained or directly related to such purposes.
- Schools may be requested to make disclosure to a public sector agency acting under a specified statutory authority (e.g. Police)
- Disclosure is deemed as necessary for the conduct of proceedings before any court.
A school may also refuse access to certain information in certain circumstances. For example, if there is a protection order and parenting order in place restricting a parent from contacting their child, this may limit their right to access said child’s personal information.
A school may also refuse access on any of the following basis:
- Protection of individuals life, health or safety
- The information does not exist
- Unwarranted disclosure of affairs of another individual
- Prejudice maintenance of law
- Breach legal professional privilege
Parenting Orders
A parenting order is an order made by the Family Court that details who has the role of providing day-to-day care for a child(ren) and/or when and how a person may have contact with the child. These can be Interim Orders (ongoing court proceedings) and Final Orders (in place until a child turns 16).
There are different types of parenting order, some examples are:
- One person has day-to-day care and one person has contact at specified times (e.g. every second weekend)
- Day-to-day care is shared (e.g. week on week off)
- One person has day-to-day care and no contact is provided for the other parent
Guardianship
A guardian of a child is someone who may not be a ‘parent’ of the child per se, but they do have all duties, powers, rights and responsibilities in relation to the upbringing of a child. A guardian of a child is able to exercise their duties, powers, rights and responsibilities, whether or not the child lives with them.
Protection Orders
Protection orders can be made alongside parenting orders, but not always. A protection order will always apply to children of the applicant’s family and anyone else specifically requested to be named on the order.
A child of an applicant to a protection order includes:
- Any child not born yet; or
- Children who live with the applicant.
Even if a protection order is in place limiting access to a child, parents and guardians may agree for the ‘respondent’ to have contact with the ‘protected child’. However, this is not the case if the Court has ordered supervised contact.
Some useful examples include:
Navigating court orders and students living situations, alongside privacy issues can be challenging. We trust this article has provided you with some practical guidelines and we are happy to provide further guidance as these matters arise. Please contact the Education Team for any advice.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
