When Edinburgh City Council banned the filming of school nativity plays last Christmas, it provoked a storm of protest from parents angry that town hall bureaucrats were preventing them from recording an important event in their child's life.
The local authority feared that it might be sued under the Human Rights Act (HRA) if pictures taken at a school event breached a child's right to privacy. Ironically, it was the threat of legal action by a parent, using exactly the same legislation and arguing that the HRA also gives people a right to a family life, which prompted the council to rescind the ban.
Those advocating a ban seemed convinced that images of children could fall into the hands of paedophiles, while others condemned this as mere paranoia, a panic reaction which would do nothing to protect children.
But while child safety is at the heart of this debate, the issue of filming or photographing school or nursery events and the use of the internet also have crucial ramifications for the way parents, nurseries and childcare students have traditionally used photographs to chart a child's development.
VITAL FOR ASSESSMENT
Christine Goldsack, quality co-ordinator of Sheffield Young Children's Service, sought legal advice from the city council's principal solicitor last summer after external verifiers cited the Human Rights Act and told colleges that photographs of children should not appear in the portfolios of childcare students (see box).
A working party was set up to produce guidance and a pro-forma consent form for use by providers, tutors and quality assurance assessors. 'We felt that photographs were often very good evidence of the level of children's involvement in their play and learning, and of adults' engagement in their play,' she says.
Richard Dorrance, chief executive of the qualifications awarding body CACHE, says that while it has not issued a blanket ban on the use of pictures, it has told colleges that 'pictures themselves very rarely provide evidence of a student's competence'. He adds, 'We get lots of pictures of children standing around doing things and our examiners ask:
"What does that say about the candidate?" Normally, very little.'
In the absence of 'a hard policy' on the issue, Mr Dorrance says CACHE tells colleges that if students do plan to use pictures of children in their portfolios, they must obtain permission from parents. 'We do point out the risks that such pictures might be used in an unauthorised way.'
However, childcare specialist Lena Engel is adamant that during her seven years as a trainer, photographs were a vital part of students' portfolios.
She explains, 'You can say a lot in a photograph that you can't say in words. It's a form of evidence to show how students have interacted with children and students' portfolios will be the poorer without them.'
For early years author and specialist Vicky Hutchin, having photographs of children in their own portfolios has been central to showing them how they are developing their learning capacities. 'Showing a child a photo of them building a model, using bricks or in role play is an incredibly useful tool to get children to talk about what they are doing and what they have achieved. You are sharing the learning process with the child.'
Photographs have always had a role in early years settings, she says. Even putting a child's picture next to their peg in the cloakroom 'helps the child identify their name with the picture of themselves and gives them a presence in that setting'.
Tom Narducci, who works for the NSPCC Consultancy and advises statutory, private and voluntary organisations on child protection, believes that local authorities are 'using a very strict interpretation of human rights legisation as a way of almost overprotecting themselves'.
He agrees with the legal stance taken in Sheffield - that there is no infringement of human rights unless a photograph of a child is used, for example, to promote a nursery without parental consent. He adds, 'It would be useful if the DfES expressed an opinion on this rather than leaving it up to schools and local authorities.'
INTERNET SAFETY
The Government has produced guidelines on internet safety (see box) on the National Grid for Learning Superhighway Safety website. TV journalist Gerard Tubb helped launch the guidelines after the British Educational Communication Technology Agency (BECTA) gave him an award for the website he had created for the 35-place Westfield Day Nursery run by his wife, Judith, in Easingwold near York.
The award came in 2000. However, in 2001, when BECTA first introduced strict guidelines on internet safety, which advocated only distant group shots of children, it told Mr Tubb that the Westfield site breached them because it included close-ups and children's first names.
He willingly removed the names but, backed by other childcare providers, he insisted that the pictures remained, 'as they were central to the ethos of the nursery'. BECTA revised its guidelines, adopting the principle that if a pupil is named, settings should avoid using their photograph and if their picture is used they must not be named.
But Carol Allen, a parent of primary school children, campaigns vigorously for a total ban on children's photographs on school websites, regardless of whether they are named or not.
'It doesn't matter how innocent the pictures may appear. It's what paedophiles will do with them that is the issue,' according to Mrs Allen.
She warns that the faces of children can easily be placed on pornographic images, and says that she was alerted to the menace of paedophiles accessing school websites through her work for an internet security firm.
Consultant psychologist Alex Hossack, who runs the Community Sex Offenders Treatment Programme on Merseyside, says that since the emergence of the internet, referrals for indecent photographs have increased. But paedophiles, he says, 'will be aroused by photographs which seem quite innocuous', and while they may visit school websites, they can just as easily obtain pictures at a school playground, on a beach or at a leisure centre.
TRANSPARENCY IS THE KEY
While Mr Tubb believes the Government guidelines are adequate, he says the DfES should be doing more to encourage nurseries, in particular, to be more transparent by promoting themselves effectively on the internet.
'Unfortunately, we are going through a very strange period of paranoia. We have a photograph of every learning goal because it's the best way of showing a concrete example of how a stepping stone is achieved in the nursery.'
Judith Gillespie, of the Scottish Parent Teacher Council, sums up the views of most practitioners when she says, 'If we go to a situation where we have no pictures of children doing exciting and interesting things and being engaged in school activities we, and they, lose an awful lot.'
But it's also important for early years settings to work in an open and transparent way with parents. That means, as Vicky Hutchin says, 'In every single case it is essential that parental permission is obtained. And that permission must be specific about whether photographs of children are for use in the classroom or outside the classroom.'
SHEFFIELD POLICY
* Faced with local colleges banning childcare students from including children's photographs in their portfolios, Sheffield City Council principal solicitor Frances Woodhead examined the issue in the light of Article 8 of the 1998 Human Rights Act. She concluded that individuals taking the photographs 'would not be caught by the Human Rights Act since they are not a public authority', but that assessors, as employees of the council, may be caught by Article 8.
However, she states that 'the distribution of the photographs is very limited and for very specific purposes', and that 'provided the consent of the individual is secured, I do not see that proceedings could successfully be brought'.
She warns that the risk of legal action would be higher if photographs of children were used to promote childcare services without parental consent.
She suggests a pro-forma consent form which can be attached to the back of a student's portfolio confirming that the photographs are purely for assessment purposes and that they 'will be seen by training and quality task group assessors but not used for any other purpose'.
DfES INTERNET GUIDELINES.
If the pupil is named, avoid using their photograph; if the photograph is used, avoid naming the child.
* Avoid close-up photographs of individual children. Try to use general shots of the classroom or group activities. Never include any other information -e-mail, home addresses or telephone numbers - which could lead to children being identified.
* Only use images of children in suitable dress, such as a school uniform.
But remember that children can be identified through logos or emblems on sweatshirts which might need to be airbrushed. It may be inappropriate to use images of children doing PE even if they, or the school, are not named.
* Always ask for parental permission to use an image of a child for a specific purpose.
* For detailed advice on child safety and the Internet, visit the DfES National Grid for Learning Superhighway Safety site at www.safety.ngfl.gov.uk.