In advance of a report of the Special Rapporteur to the UN Human Rights Council on children’s right to privacy, COPE and a cohort of international and national agencies, ombudspersons, non-governmental organisations and other stakeholders drafted submissions to inform the Special Rapporteur on a series of child privacy issues. COPE joined other network members to highlight the importance – and complexity – of safeguarding children with a parent in prison while honouring the child’s right to privacy and promoting the child’s autonomy to share when collecting data.
The report published by the UN Special Rapporteur on the Right to Privacy includes specific references to children with imprisoned parents in paragraph 95, as well as in the Recommendations, paragraph 127, (n) and (o); some of the more general parts, including paragraph 119 onwards, are relevant as well.
The report is available in English for download here: Artificial intelligence and privacy, and children’s privacy A_HRC_46_37_E
It is also available in all UN languages here: 46th session of the Human Rights Council: Reports
Serious questions surrounding data collection and child privacy arise when a parent is incarcerated. On the one hand, more data about children with a parent in prison is needed; Council of Europe Recommendation CM/Rec(2018)5 on children with imprisoned parents highlights the lack of accurate, systematic records of the number of children with parents in prison worldwide, which is a challenge when working to support children’s needs. On the other hand, multiple child’s rights standards, including Article 16 of the UNCRC, enshrine the child’s right to privacy. Do issues of child protection and child support outweigh the right to privacy in such cases? If so, what are the repercussions?
From the perspective of children’s rights, gathering and sharing information with the goal of supporting children when a parent goes to prison arguably supports children’s rights to special care and assistance when deprived of a parent, as per Article 20 of the UN Convention on the Rights of the Child; the right to information, as per Articles 9, 13 and 17 of the UNCRC; and the right to support under Article 6 of the Council of Europe Recommendation CM/Rec(2018)5.
Yet there is a real risk that gathering information that exposes the fact of a parent’s imprisonment without family consent risks breaching Article 2 of the UNCRC in relation to discrimination based on the status of a parent. General Data Protection Regulations (GDPR) protect parents when they are imprisoned in an EU country and require parental consent to use any data obtained. What impact do mandatory reporting laws have on this? How can children with a parent in prison be supported if information about that child is not made available to public or private child-protection institutions? How can we make sure such information is not abused and doesn’t lead to profiling?
Maybe most importantly: Does a child with a parent in prison have a voice in the sharing of this information?
A distinction needs to be made between anonymously collected data made public for policy or planning purposes (for prison administrations and child protection stakeholders) and data specific to prisoners and their children, collected with the goal of supporting the child-parent relationship and facilitating children to be taken into account in decision-making. Certain information, like where children are living, is important to know to allow for the allocation of detained parents to a facility nearby, as per the general principles of CM/Rec (2018)5. Contact information is key too, so families can stay up to date about transfers and illnesses and to ensure that regular contact between children and imprisoned parents is maintained, as per UNCRC Article 9, and that children receive adequate support.
As COPE member Families Outside points out in their submission to the Special Rapporteur:
Rule 7f of the UN Standard Minimum Rules for the Treatment of Prisoners 2015 (the Nelson Mandela Rules) requires the names of children, their ages, location, and custody or guardianship status to be recorded for every person entering prison. The Rule does not then specify whether this information can be shared or aggregated in any way, nor does it state the purpose of recording the information in the first place. Perhaps the question that most needs to be asked is whether a child with a parent in prison should have a voice in the sharing of this information. Yet the question remains as to how accessible or comprehensible consent requirements are for children.
COPE feels that there should be greater transparency with respect to data collection and the use of such data, and that ethical guidelines should be established by government bodies and respected by all relevant parties.