In days gone by, teachers - and especially the headteacher - were omnipotent.

One aspect of their omnipotence was control over pupils’ information - the ability to pick up the phone to parents - or even hold a meeting - to discuss behaviour, welfare or work.

Subject choices, higher education and career choices were all questions directed as much at parents as pupils. And in the past pupils regarded that as non-negotiable.

Today’s pupils are not so unchallenging, however. And with student activism, pupil power and privacy rights, are we right to assume that everything about a child can be shared without consent?

Context is key 

The answer depends on the nature of the information and the age and maturity of the child.

There are legal issues of privacy, confidentiality and data protection all at play that schools must be aware of each and every time.

Data protection is a subject in its own right but it is worth noting that while the personal data rights of each child are their own, this does not give them total control of information about themselves: there are circumstances where sharing without their consent will be lawful and necessary.

Parental responsibility is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law the parent of a child has in relation to the child and his property”.

Generally speaking, parents registered on the birth certificate hold parental responsibility for the child until age 18. Parental responsibility is not lost on divorce but can be acquired by others such as stepparents in particular circumstances.

In considering the question of sharing information with parents, the starting point is the concept of parental responsibility. Parental responsibility involves providing a home for and protecting and maintaining the child.

This includes choosing and providing for their education, agreeing to medical treatment, discipline, naming and changing a child’s name, and looking after their property.

But crucially the powers given to parents are limited by the welfare principle - that the exercise of parental rights of custody, care and control can be challenged, and even overridden, by the need to regard the child’s welfare as paramount.

Parental responsibility has however been described by Lord Denning in the 1970 case of Hewer v Bryant as a dwindling right which the courts will hesitate to enforce against the wishes of a child, the older the child is. 

When the child is young parents have almost total control. As the child becomes older it dwindles to little more than giving advice.

This can make it hard for schools and teachers to know exactly where they stand. While every case is unique these are some good guidelines by which to consider any decision where issues of parental responsibility, privacy and data protection meet.

1. Medical information

Teachers are likely familiar with the concept of Gillick competence.

So a child who is 16 or above, or below that age but nevertheless mature enough to understand the risks and consequences of their own actions, is able to require that the school treat any medical information shared in confidence as confidential and not disclose it to parents in the absence of overriding welfare need.

For example, a 17-year-old girl confides that she has been prescribed the contraceptive pill because she is in a consensual relationship with a 17-year-old boy in a neighbouring school.

She is entitled not to have that information shared by the school with her parents, as she is Gillick competent and there is no welfare concern that overrides the duty of confidence.

If however, the facts were different, for example, she was in a relationship with an older man which gave rise to concerns about her welfare, it is likely that her parents and children’s services would need to be informed. 

2. Safeguarding information

Teachers recognise the need not to promise a pupil’s confidentiality when handling a safeguarding disclosure.

That is because the welfare principle trumps the pupil’s desire for confidentiality, for example, to make a referral to statutory agencies, or where the school determines that the child’s welfare can only be safeguarded by sharing the information with parents.

So, a 15-year-old pupil discloses that they have been the victim of sexual assault by another pupil, but do not want it reported to parents or police.

Every case needs to be considered on its own facts, but this child is likely to have suffered harm and to be at risk of further harm.

Under Keeping Children Safe in Education and Department for Education guidance, the school should be making an initial referral to Children’s Services and in all likelihood to the police.

These are actions normally to be taken with explanation and consultation to/of the pupil - and parents should be informed of any referral unless there are particular reasons for not doing so.

3. Discipline

Parents expect to be told when their children get into trouble at school. For many, it is the act of informing their parents which instils the most fear.

Schools are within their rights to inform parents of their child’s disciplinary breaches in order to implement their disciplinary policies and sanctions.

If a child has to remain in detention, or is being set extra work, their parents have to know.

That remains true even if the offence is something that the pupil may be embarrassed about.

The relationship between school and parents could not be performed without information sharing from school to home. However, there can be times when cases arise that are not as clear cut.

A few years back a school made the headlines because it did not inform a pupil’s parents that a pupil faced a criminal trial for fare dodging. 

The pupil had shared the information in confidence with the school, was over 16, and did not want her parents to be told. This is a good example of a finely balanced case. 

The school had ensured the pupil realised the seriousness of her situation and helped her to get the legal advice she needed.

They respected her request for confidence because she was genuinely fearful of her parents’ reaction.

If the pupil had not felt able to share the information in confidence with the school, the likelihood is that they would not have told anyone and would have tried to manage the situation alone.

It is to be hoped that in practice such cases will be rare, because a child will almost always benefit from the transparent sharing of information with their parents, and most children will be persuadable, save in extreme cases. 

4. Educational matters

Even the educational choices a child makes can cross into thorny legal issues. For example, what happens when a child wishes to choose A levels or apply to university against their parents’ wishes?

Clearly, it is the child’s decision, because aged 16 or 17, they are mature enough to understand the consequences of their actions.

But what if the child does not want their parents to know their choice? It is rare schools meet an absolute roadblock - though more common in the case of divorced or separated parents where a child may not agree to information being provided to one parent. But this is where parental responsibility would come in.

The default position is that those with parental responsibility have a right to know unless there is a good reason not to.

Overall, control of pupil information is an area likely to see increasing challenges in the future from pupils themselves, especially older pupils.

When challenges arise it is often best to revert to the core legal principles in deciding how to proceed.