Who Signs for a Child? (updated)
When it comes to obtaining the personal information of a child under the age of 18 years, it is commonly accepted that a child cannot sign for themselves. So, who can sign for that child?
The Children’s Law Act, 2020 sections 3 and 4 provides:
- The parents of a child are joint legal decision-makers with equal rights unless changed in a court order or an agreement;
- Where parents have not lived together after the birth of a child, the parent with whom the child resides is the sole legal decision-maker;
- If a parent dies, the surviving parent is the legal decision-maker of that child unless changed by a court order or an agreement.
The Freedom of Information and Protection of Privacy Act (FOIP), section 59 and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), section 49 both provide:
59 Any right or power conferred on an individual by this Act may be exercised
…
(d) where the individual is less than 18 years of age, by the individual’s legal custodian in situations where, in the opinion of the head, the exercise of the right or power would not constitute an unreasonable invasion of the privacy of the individual; or
In effect, then the legal decision-makers can sign on behalf of the child. This means two parents, sometimes one parent, or as directed in a court order, or agreed to in an agreement. For an analysis of this, see report Investigation Report 083-2022
The Health Information Protection Act (HIPA), has a similar provision, section 56 which provides as follows:
56 Any right or power conferred on an individual by this Act may be exercised:
…
(c) by an individual who is less than 18 years of age in situations where, in the opinion of the trustee, the individual understands the nature of the right or power and the consequences of exercising the right or power;
(d) where the individual is less than 18 years of age, by the individual’s legal custodian in situations where, in the opinion of the trustee, the exercise of the right or power would not constitute an unreasonable invasion of the privacy of the individual;
These provisions caused a number of questions to be asked.
Q. What if the parents are separated?
A. If parents are separated, they both are still joint legal custodians unless changed by a court order or an agreement. In a court order, a judge can order that one parent is the sole legal custodian. In an agreement, one parent can give up his or her rights to be the joint legal custodian. In these instances, the head or a trustee should ask for a copy of the court order or agreement and identify the clause that deals with legal custodianship.
Q. What if one of the separated parents has a girlfriend, boyfriend or new spouse?
A. The girlfriend, boyfriend or new spouse has no rights unless it has been directed in a court order or dealt with in an agreement.
Q. What if the child wants to exercise his or her rights?
A. FOIP and LA FOIP do not have a specific section that answers this question. When children get to the age of what may be considered a mature minor, heads should use their discretion to provide the personal information if the child, “understands the nature of the right or power and the consequences of exercising the right or power.” Heads should also look to their governing legislation to see if the Legislative Assembly has provided direction on the rights of the child.
HIPA does contemplate an individual under 18 years of age exercising a right under the Act such as requesting his or her personal information or making a decision with respect to it. When such a request is made, it is up to the trustee to determine whether the individual understands the nature of the right or power and the consequences of exercising the right or power. There is no specific age when one can say that is a mature minor.
The head has to in each circumstance determine whether the child understands the nature of the right or power and the consequences of exercising the right or power. In circumstances of uncertainty, the head might decide to acquire the signature of the legal custodian and the child.
Q. Can the legal custodian obtain all personal information or personal health information?
A. All three statutes provide that legal custodians can have the information, unless in the opinion of the head or trustee, providing the information would be an unreasonable invasion of privacy of the individual. The data minimization principle would still apply.
Doctors, nurses, social workers, teachers and guidance counsellors can run into this problem. Parents may want all the information, but that information could include information on pregnancy, drug addiction, sexually transmitted disease, contemplated suicide, contemplated leaving home, gender identity or commission of a crime. In addition, the child may have expressly asked that the information not be shared with their parents. In these instances, the professional involved, their supervisor, the head or the trustee must consider very carefully the words “unreasonable invasion of privacy.
Q. What if the child verbally or in writing tells the professional that they have shared the information in confidence and does not want their parents to know?
A. This adds to the challenges faced by the professional. Such a request by the child is a clear indication that the child wishes privacy and does not want the information to be shared with others. It is an important factor in determining whether there would be an “unreasonable invasion of privacy.”
Releasing personal information under the new policy of the Ministry of Education
The Ministry of Education has issued a policy related to students request to change names or the pronoun they wish to be used. The policy provides as follows:
…Given the sensitivity of gender identity disclosure, when a student requests that their preferred name, gender identity, and/or gender expression be used, parental/guardian consent will be required for students under the age of 16.
For students 16 and over, parental consent is not required. The preferred first name and pronoun(s) will be used consistently in ways that the student has requested.
In situations where it is reasonably expected that gaining parental consent could result in physical, mental, or emotional harm to the student, the student will be directed to the appropriate school professional(s) for support. They will work with the student to develop a plan to speak with their parents when they are ready to do so.
Educational organizations collect personal information both directly and indirectly about individuals while providing educational services. Educational organizations should take all reasonable steps to protect this personal information from unauthorized uses and disclosures, and to protect the privacy of the individual…
It is not my position to approve or disapprove of a policy. Thus, I provide no comment on the policy itself. I can however comment on any access and privacy implications that might exist. First, the policy is directed at school boards and school boards are local authorities under LA FOIP. Further, I note, subsections 28(1) and (2) of LA FOIP provide:
28(1) No local authority shall disclose personal information in its possession or under its control without the consent, given in the prescribed manner, of the individual to whom the information relates except in accordance with this section or section 29.
(2) Subject to any other Act or regulation, personal information in the possession or under the control of a local authority may be disclosed:
…
(r) for any purpose in accordance with any Act or regulation that authorizes disclosure; or
…
Subsection 28(1) of LA FOIP prohibits disclosure of an individual’s personal information without their consent. There are exceptions contained in subsection (2). Clause (r) is one of those exceptions, which allows disclosure if provided for in an act or regulations. I note the clause does not refer to policy. Thus, the local authority disclosing information to a legal custodian (parents) would need to find authority in The Education Act or Regulations.
Section 49 of LA FOIP provides:
Exercise of rights by other persons
49 Any right or power conferred on an individual by this Act may be exercised:
…
(d) where the individual is less than 18 years of age, by the individual’s legal custodian in situations where, in the opinion of the head, the exercise of the right or power would not constitute an unreasonable invasion of the privacy of the individual; or
…
I note that a legal custodian (parents) has the right to request and receive personal information of their child, where in the opinion of the head (usually the Director of Education), providing the personal information would not be an unreasonable invasion of the privacy of the child. The Director of Education is required to form an opinion that it is not an unreasonable invasion of privacy before doing so.
In summary, a Director of Education can release personal information to the parents, if the child consents or in the Director’s opinion, it is not an unreasonable invasion of the child’s privacy.
Other helpful resources on this topic can be found at:
- Office of the Privacy Commissioner of Canada Form of Consent
- Best Practice for Gathering Informed Consent
- Alberta IPC Order F2012-21case on unreasonable invasion of privacy