Most of the questions I answer come from childminders and nurseries - but this one came from a parent about the General Data Protection Regulation (GDPR).
A parent asked me: my childminder is insisting on sharing information with my daughter’s pre-school and I don’t want her to do that so I have refused permission. She has gone behind my back now and spoken to them and they have refused to share and informed me. What should I do next?
This is quite a complex legal situation but I will do my best to explain.
The recent changes in law around data sharing have left a lot of early years providers confused. It has taken many phone calls to the Information Commissioners Office to resolve different aspects of law.
Under the new General Data Protection Regulation (GDPR) there are 6 legal bases for information sharing –
- One of them is ‘consent’ – asking permission to do things;
- One of them is ‘legal obligation’ – we are required to do something by a legal document;
- The most flexible legal basis is ‘legitimate interest’ and that also applies here.
You can read more about the legal bases for processing data on the ICO website here.
The Early Years Foundation Stage – our statutory framework – requires us to share information with other settings or professionals to support children’s learning from the introduction (page 5) onwards - this is covered by the legal basis of ‘legal obligation’.
However, the EYFS also requires early years to gain permission for information sharing when we are sharing the 2 year progress check – see EYFS requirement 2.5. This is covered by the legal basis of ‘consent’ or what we normally refer to as ‘permission’.
There is a strong argument that we are ‘reasonably expected’ to share information with other settings to support children’s learning – using the legal basis of ‘legitimate interest’ - children do not learn in isolation and other settings are an important part of their lives.
Bringing all this together...
Your childminder was wrong to ask your permission to share information with other settings because it is required by the EYFS (legal obligation – EYFS requirement) and ‘reasonably expected (legitimate interest) – HOWEVER, most (if not all) childminders do ask permission because it is the polite and respectful thing to do and because, up to very recently (before GDPR), we have been required to ask permission so we do it automatically...
Your pre-school was wrong to withhold information (legal obligation – EYFS requirement) – HOWEVER, they probably haven’t looked into the law as much as me so they think they are doing the right thing by following your wishes... and as you have said ‘no’ they don’t feel they have a choice...
By withholding your permission you are setting both your providers up for a fail for a number of reasons including:
Ofsted will downgrade (especially childminders but also group settings) if they are not sharing information (legal obligation) – your childminder probably knows this and is very concerned about the situation.
Information sharing is reasonably expected (legitimate interest).
Your child’s care and learning needs are not being met if providers cannot complement their learning properly in all settings they attend.
You need to ask yourself why you are withholding permission - what are you worried about them sharing? Why wouldn’t you want the best complementary learning experience for your child? Only you know that...
Would rules about exactly what is shared / not shared help to resolve this situation to everyone’s – most of all your child’s – benefit? A simple data sharing agreement where all parties agree what can and cannot be shared might be the best way forward – for example, yes to sharing observations, ‘firsts’ that might impact your child’s safety and tracking data – no to sharing gossip or anything stated clearly as confidential.
Note: it is a requirement to share safeguarding information with the Local Safeguarding Authority regardless of any data sharing agreements if a provider believes a child might be at risk of harm or if an allegation is made.
I hope that clarifies. Sarah
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