Capacity of children and young people to exercise their own data protection rights
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Due to the Data (Use and Access) Act coming into law on 19 June 2025, this guidance is under review and may be subject to change. The Plans for new and updated guidance page will tell you about which guidance will be updated and when this will happen.
Children and young people under 18 have the same data protection rights as adults, but they also merit special protection. Please see our guidance Children and the UK GDPR.
As part of your decision-making about data sharing, you should take into account the capacity of the child or young person to exercise their own rights. This is a nuanced judgement that changes as the child or young person gets older.
In England, Northern Ireland and Wales, the capacity of a child or young person - often referred to as ‘Gillick competence’ - is assessed depending on their level of understanding. In many cases, it is reasonable to follow the approach of Scotland1 where the presumption is the age of 12 and over. For more information, please see our guidance What rights do children have? and the NSPCC’s guidance Gillick competence and Fraser guidelines.
Even where the lawful basis for sharing information does not require the consent of the child or young person (and you use a different lawful basis instead), it’s good practice to listen to and consider their voice. Where it is safe and appropriate, you should explain decisions in a way the child or young person can understand, seek their perspective, and take their wishes into account alongside safeguarding considerations. This helps build trust, ensures transparency, and can improve the effectiveness of safeguarding interventions.
However, whilst it’s good to take into account children’s views, this does not override your duties to report a child protection concern, even where a child disagrees.
[1] For Scotland, s208(3) of the Data Protection Act 2018 states that “A person aged 12 or over is to be presumed to be of sufficient age and maturity to have such understanding, unless the contrary is shown."