Data protection
The
guardian safeguards the right of the child to privacy and data protection, in
the context of the guardianship services and in relation to all other state
authorities and service providers who are in contact with the child.
Data
protection is regulated by European and national law.[1] In
accordance with standards set out by law, the child and the child’s guardian
have to give informed consent to the gathering and processing of personal data.
The purpose and means of data processing have to be defined by law, clarifying
in which specific cases data processing is permitted, and regulating rules of
professional secrecy that set limitations to data sharing, as well as risk
assessments and appropriate security measures to ensure safe data processing.
The data minimisation principle provides that the processing of personal data
should be adequate, relevant and not excessive in relation to the purposes for
which the data are processed.[2]
When sharing
personal data of an unaccompanied child with countries of origin, state
authorities and international organisations have to ensure an adequate level of
protection. This may be relevant with regard to unaccompanied children who have
applied, or are considering to apply, for international protection or have been
granted international protection. In these cases, to guarantee the person’s
safety and confidentiality and in accordance with the principle of
non-refoulement, the authorities of the person’s country of origin or previous
residence must not be contacted.[3]
The competent authorities or organisation should inform the guardian
promptly about the data of the child that will be held on record, how the child
can access their records, and the procedures for applying for rectification of
data held on record. The guardian ensures that the competent authorities or
organisations inform the child in a child-friendly manner and in a language
that the child understands about these matters. The guardian is also
responsible for assisting the child in obtaining access to these data.
See
also:
Level 5: Mandate and tasks of the
guardian
Level 6: Promoting the rights and the
best interests of the child
Reference:
EU training andlearning platform for guardians of unaccompanied children
Chapter 4: Quality standards andaccountability of guardianship services
Literature:
FRA (European Agency for Fundamental
Rights) (2014), Guardianship for children deprived of parental care, A handbook to reinforce guardianship systems to
cater for the specific needs of child victims of trafficking, Luxembourg, Publications
Office of the European Union (Publications Office), pp. 45-46, 71-72.
[1] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal
data and on the free movement of such data OJ 2016 L 119 (General Data Protection
Regulation); see in particular Article 5.1, and https://gdpr-info.eu/. Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108), 1981. Council of Europe,
Convention for the protection of individuals with regard to the processing of
personal data, Convention 108+. Council of Europe, Additional Protocol to the Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data, regarding
supervisory authorities and transborder data flows (ETS 108) 2001. Council
of Europe, Modernised
Convention for the Protection of Individuals with Regard to the Processing of
Personal Data, Consolidated Text, CM/Inf(2018)15-final, 18 May 2018;
Council of Europe, Recommendation CM/Rec(2019)2 (2019) on the protection of
health-related data.
[2] Council of Europe, Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108), 1981. Council
of Europe, Convention for the protection of individuals with regard to the
processing of personal data, Convention 108+, Article 5.c.
[3] UNHCR 2001), Global
Consultations on International Protection/Third Track: Asylum Processes (Fair
and Efficient Asylum Procedures), 31 May 2001, EC/GC/01/12, §50 (m).
United Nations (UN), Committee on the Rights of the Child, General Comment No.
14 (2013) on the right of the child to have his or her best interests taken as
a primary consideration, CRC/C/GC/14, 29 May 2013, par. 92. Council of Europe, Additional Protocol to the Convention
for the Protection of Individuals with regard to Automatic Processing of
Personal Data, regarding supervisory authorities and transborder data flows
(ETS 108) 2001, Article 2.