Children reach capacity at 18. Until then there are various restrictions and regulations governing:
- how you can contract with them;
- how you can advertise to them;
- their involvement in events and promotions; and
- what data you can take from them.
This note covers those topics and will help you avoid some of the pitfalls inherent in dealing with children.
The general rule is that where possible you should always aim to contract directly with the child’s parent/guardian (or the person with parental responsibility for the child) and always try to obtain their explicit consent for the child’s involvement in activities/events or the collection of the child’s data.
CONTRACTING WITH CHILDREN
Contracting with the child directly
Children can only enter contracts:
- for necessaries e.g. food, shelter, medicine (these contracts must be to the child’s advantage and not contain any harsh or oppressive terms); and
- in relation to apprenticeships, education and services (explained further below).
Any other contract will be voidable at the child’s option (i.e. not binding on the child but can be binding on the other party - although if a child doesn't fulfil their side of the contract they are unlikely to be able to insist that the other party does).
Contracts that are obviously prejudicial to the child, or contain onerous terms, are not voidable but wholly void.
If a child formally rejects a contract:
- for the sale of goods: the court can order the child to return the goods to which the contract relates;
- for the supply of services: the court has discretion to order the child to pay the agreed amount where it has had the benefit of the services.
Despite not being liable under a contract, a child that has entered a contract may be forced by law to make restoration to the other party in some way e.g. if the child has lied about its age when entering the contract. This comes with a warning: this is an equitable remedy and therefore discretionary and complicated. The court will make a decision based on the balance between the need to protect the child and the interests of the contracting party.
If a child enters a contract they can ratify the contract when they turn 18 despite there being no new consideration.
Contracting with a parent or guardian
A parent/guardian/person with parental responsibility (see below) will be liable to the other party under their child’s contract if he/she:
- contracted as the child's agent; or
- entered into a personal contract with the contracting party.
When contracting with parents on behalf of their children make sure you include wording which expressly states that the parent will be liable for the child’s contractual obligations.
Contracting with a child’s agent
A properly appointed agent can enter a contract on behalf of a child.
To be properly appointed the agent will have an agreement in place with the child’s parent/guardian giving them authority to represent the child.
If the contracting party were to bring a contractual claim, by virtue of the agreement in place between the agent and the child’s parent/guardian, the parent/ guardian would ultimately be liable.
When contracting with agents on behalf of children make sure the contract includes a declaration that the agent is authorised by the child’s parent/guardian to sign on behalf of the child.
PERMISSION FOR FILMING
You need informed consent in writing from a parent/guardian before a child is filmed.
For crowd shots, the position is less clear but as a rule of thumb, where no individual is shown in particular, consent is usually not required.
While privacy claims are particularly fact sensitive you should go as far as practically possible to ensure specific informed consent is obtained each time. The issues relating to privacy are largely avoided if permission forms are used (and signed), provided that the forms clearly state the proposed content and uses of the images/footage.
Businesses often combine the consent for filming with a wider disclaimer for those participating in an event. It might be desirable in some instances to have a separate consent form to ensure that the matter is clearly brought to the attention of the parent or guardian.
In certain cases it may also be best practice for the child to also sign a permission form (particularly if they are over 12). There are no strict rules about when such a consent should be obtained, nor is there currently any industry guidance, but the government is keen for children to be entitled to decide for themselves whether to participate in such activities.
COLLECTING PERSONAL DATA FROM CHILDREN
One of the key principles of the Data Protection Act (DPA) is that personal data is processed fairly and lawfully.
- To be "fair", the business must provide the child/parent or guardian with a privacy note either before or as soon as possible after the data is processed. The notice should beclear, understandable and, where they are directed at children, should be written in a way that parents would be unlikely to object to.
- To be “lawful”, the data subject needs to give their consent or one of the other legitimising conditions in Schedules 2 and 3 of the DPA must be complied with. Any consent given needs to be informed, clear and unambiguous.
There are no rules with regard to the age at which a child can give his/her consent in relation to the processing of their data. However, the ICO, considers it reasonable for children aged 12 or over to give their consent. For children under 12 personal data should only be collected with the explicit and verifiable consent of the child's parent/guardian.
In any event, parental consent must be sought if the collection or use of the information about a child is likely to result in:
- disclosure of a child's name/address to a third party, e.g.as part of competition T&Cs;
- use of a child's contact details for marketing purposes;
- publication of a child's image on a website that anyone can see;
- making a child's contact details publicly available; or
- the collection of personal data about third parties, for example, where a child is asked to provide information about his or her family members or friends.
The key issue is to take into account the degree of risk that the collection or use of the personal data poses to the child or to others. This will help you to determine whether parental consent is required and, if so, what form this should take.
ADVERTISING AND PROMOTING TO CHILDREN
All advertisers must adhere to the Advertising Standards Authority Committee of Advertising Practice (CAP) non-broadcast code and/or the broadcasting CAP code (BCAP). Both the CAP and BCAP Codes have sections dealing with advertising featuring or aimed at children.
Both codes classify someone as a child if they are under 16. The sections addressing children are to protect them from physical, mental or moral harm and to prevent the exploitation of their credulity, loyalty, vulnerability or lack of experience.
The Key Prohibitions - advertising of any product targeted at or featuring children must not:
- Directly exhort children to buy advertised products or persuade their parents or other adults to buy advertised products for them (rule 5.4.2, CAP Code; rule 5.9, BCAP Code).
- Exploit a child's credulity, loyalty, vulnerability or lack of experience (rule 5.2, CAP Code; rule 5.7, BCAP Code).
- Encourage children to make a nuisance of themselves and undermine parental authority (rule 5.4, CAP Code).
- Encourage the copying of an unsafe practice (rules 5.1.4 and 4.5, CAP Code; rule 5.2, BCAP Code).
- Exaggerate what is attainable by an ordinary child using the product being advertised or promoted (rule 5.3.1 CAP Code; rule 5.7, BCAP Code).
- Exploit children's susceptibility to charitable appeals (rule 8.17(e), CAP Code).
- Make it difficult for children to judge the size, characteristics and performance of any product advertised (rule 5.2.3, CAP Code).