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Schools need consent to fingerprint kids?

ICO sticks its neck-out - and gets it in a twist

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The Information Commissioner has declared that schools should ask for the consent of children and parents before they take pupil's fingerprints, despite there being no legal obligation for them to do so.

The data protection supervisor issued the informal advice yesterday, contrasting with previous public comments on the issue of consent, some of them related to its official guidance on school fingerprinting, which it is still drafting.

A spokesman for the Information Commissioner's Office said: "Because of the sensitivity of the issue, we are recommending that schools follow best practice and ask permission of parent and pupil before they take a fingerprint."

However, he said: "There's nothing in the act that makes that clear," and could not explain what would happen to schools that failed to follow this advice. Neither could he say at what age a child could assume legal responsibility for its own behaviour, without seeking parental advice.

Received wisdom - established by the Gillick precedent - has it that a child can decide for itself on matters of data protection when it is mature enough.

This was the basis on which the ICO worked till now. Last September when the ICO guidance on school fingerprinting was said to be just weeks away from publication, David Smith, now deputy commissioner, said that schools could fingerprint children without parental consent under the Data Protection Act. As long as kids were deemed to be old enough to make their own minds up, the school could ask them and keep parents out of the loop.

Only yesterday, the ICO issued an official guidance note on the age at which children were deemed to be old enough to ask under the Data Protection Act to see their school records. The note accorded with its early view of fingerprinting: pupils where old enough when they were mature enough.

"As a general rule, students aged 12 and over should be considered mature enough to make a request for their own personal information," said assistant commissioner Phil Jones in a written statement yesterday.

"But as young people mature at different ages schools must treat each request on a case by case basis,” he said.

Chris Pounder, a data protection consultant for the legal specialists Pinsent Masons, said the same was true of fingerprinting school children: "It all depends on the capacity of the young person in every case. Usually, under 12 you normally consider parental rights prevail - over 15, its usually the young person's right which prevail. In the middle, it can be 'judgement of Solomon' time."

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