Hot off the press for 2018 is new advice from the DfE. It’s aimed at English schools’ leaders and staff and explains what powers they have for screening and searching pupils. It also provides statutory guidance which schools must adhere to.
The departmental advice is easy to read and understand and refers to consent and to searching with and without consent. Unfortunately, it doesn’t explain the ability to give consent or the various influencing factors that must be taken into account, such as the child’s age. Here are some key points to consider from the guidance.
School staff can search a pupil for any item if the pupil agrees [consents].
Head teachers and staff are authorised by law to search a pupil’s possessions without consent where they have reasonable grounds to suspect that they are in possession of a prohibited item likely to cause harm to themselves, another person or the property of any person or items related to a criminal offence. For example, fireworks, illegal drugs, pornographic images, stolen items or weapons.
Head teachers and authorised staff can also search for any item banned by the school rules, providing those rules state that the item may be searched for.
School staff can seize any prohibited item found in a search. They can also seize any item they consider harmful or detrimental to school discipline.
A child is defined as a person under the age of 18. Historically, a child’s age presented issues surrounding consent. Over the last 30 years, this has been easier to understand in light of the medical sector’s Gillick competence and Fraser guidelines.
“Like adults, young people (aged 16 or 17) are presumed to have sufficient capacity to decide on their own medical treatment, unless there’s significant evidence to suggest otherwise.
Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what’s involved in their treatment.”
Age of consent
To build on this, Article 8 of the General Data Protection Regulation addresses consent when processing children’s personal data. It generally states that you cannot rely on consent given by a child under 16 years of age. However, goes on to say that a Member State may lower the age… ‘provided that such lower age is not below 13 years’.
Until such time as parliament settles on an age, this may cause some uncertainty. Some speculate that the UK may adopt 13 years since under Scots law, currently, a person who is 12 can access personal records and/or make a freedom of information request from a public authority.
To use the medical and data protection contexts as a reference point, the factors to consider are summarised in the following question:
Does the child demonstrate that they have enough intelligence, competence and understanding to fully appreciate what they are consenting to?
Finally, although the new advice from the DfE states that schools are ‘not required to have formal written consent from the pupil’ it is good practice to document how the consent was gained in an event or incident report.