Vardags Family Law Essay competition 2023/24 | Kathleen Humphrey

Kathleen Humphrey - Lancaster University

“Sharenting”: A new method of parenting online, or an exploitation of children? An Essay on the Issues and Potential Solutions of Protecting Children From ‘Sharenting’ Through English and Welsh Family Law.

Introduction:

There is little denying that the explosion of social media and its impact on our society has become more and more multifaceted. Today’s most popular platforms, such as Instagram, or TikTok, gave rise to a new form of occupation: influencers. Influencers are those who create online entertainment content while earning revenue from the interactions their posts receive. Over 50 million people around the world are influencers. One set of such influencers consist of parents showcasing their family life in a method known as ‘sharenting’, referring to parents sharing information, photos, videos, personal stories, and updates about their child’s life in exchange for views and income.

While it is accepted that children themselves own social media accounts and post their own content, the context where children participate in their parent’s ’sharenting’ profiles has come under criticism for causing mental, emotional and physical harm to the children involved, and has been especially relevant since the growth of the platform TikTok. Thus raising the question of how family law ought to better protect such children.

Firstly, if we are to understand what the legal system can become in regards to protecting children on ‘sharenting’ channels, we must examine the functions that the law already has in modern society regarding children’s protection when shared online by parents. This essay aims to lay out the possible incompatibility of existing family law provisions, such as the Children Act 1989, and its inability to encompass ‘sharenting’ as a risk of significant harm to children, preventing local authorities from intervening where such harm to children may arise. Secondly, this essay discusses the difficulties of ascertaining what the trigger for protective intervention by family law provisions should be when risk of harm to children occurs through ‘sharenting’, and the complexities this creates for lawmakers. Finally, this essay discusses the proposed French lawmaker methods of protecting childrens’ rights from the effects of ‘sharenting’, and that it may be more practically grounded for family law to set statutes in place to protect children’s privacy rights, rather than amend existing provisions protecting children from harm caused by ‘sharenting’.

Existing Provisions Don’t Effectively Protect Children From ‘Sharenting’:

Under the Children Act (CA) 1989 section 17(1), English and Welsh local authorities have a “general duty to safeguard and promote the welfare of children within their jurisdiction.” Thus it is reasonable to assume that children belonging to a ‘sharenting’ family within a local  authority’s jurisdiction are owed these general duties of safeguarding and promotion of welfare. However, there is not necessarily a duty for the local authority to assess the welfare of individual children under their jurisdiction without sufficient evidence or reason that there is a need to do so.

Section 17(10) of the CA details circumstances by which an individual child will be deemed to be “in need” where parents are “unlikely to maintain a reasonable standard of health” and “health is likely to be significantly impaired without provision.” Intervention consists of, but is not limited to: supervision by a local authority, interviewing the child, voluntary rehoming or complete removal. Definitions of children’s “health” within the CA 1989 (falling under s31(9)) include: physical and mental wellbeing, the impairment of intellectual, emotional, social or behavioural development and forms of mental or physical ill-treatment.

It all seems fairly straightforward, if someone suspects such harm listed is being inflicted on a child and alerts the correct local authority, the local authorities and courts can intervene. Despite such outward simplicity in utilising family law to protect vulnerable children, these provisions become far more complex where the same forms of harm occur via ‘sharenting’. One might question whether a child used by their parents for ‘sharenting’ content could, or even should, be considered to have their “standard of health significantly impaired.”

One criticism of ‘sharenting’ is that parents put the mental health of their children at risk by posting embarrassing content for millions to see leading to bullying and impairment of self image. Subsequently, more than one in four children are anxious, embarrassed or suffer mentally because of what their parents post online about them. Children are typically the victims of adult exploitations and such exploitations should not exclude ‘sharenting’. ‘Sharenting’ may expose children to neglect and abuse, and while ‘sharenting’ may not always result in visible harm to the child involved, it can lead to problems in social, emotional, or mental development.

Such risks of harm have potential for local authority intervention as seen in s17 by family law jurisdiction, however there seems to be few known instances of children being protected by local authorities from ‘sharenting’. Some may believe it is perhaps rare for such intervention to be warranted. After all, how often can filming and posting a child to social media be detrimental to their wellbeing? Well, ‘sharenting’ and distress arising from it is actually not a rare occurrence. Current statistics from a study conducted by Stacy Steinberg (2017), highlight that 56% of parents have shared potentially embarrassing information about their children online and 27% of parents have shared potentially inappropriate pictures. If such risks to a child were observed in real time (i.e not through a phone screen), by virtue of a parent’s harmful conduct or a child presenting symptoms of neglect through behavior or physical appearance, local authorities would be notified and investigations would promptly be issued. Due to the scripted and edited nature of content posted online, spotting neglect through a ‘sharenting’ video will not always offer the true extent of harm occurring off-screen. Therefore, existing provisions guiding appropriate local authority intervention may not be compatible, or even useful, to children who are at risk of harm induced by their parent’s ‘sharenting’ content, because the type of harm suffered is far less recognisable than the “traditional expectations” of what harm is.

When parents become obsessed with money and views they can end up forcing their children to perform for the camera, even when the children do not want to. It is not impossible to conceive that parents posting embarrassing, let alone unconsented, content onto the world wide web for millions to see could become detrimental to the child’s mental, and perhaps physical, wellbeing. Yet such effects caused by ‘sharenting’ are hardly recognised, or considered, by family law provisions. For surely, if it were commonly known that parents causing harm to their children via ‘sharenting’ were facing legal consequences, then such content might greatly reduce, which it has not. Although, it is not surprising that provisions established years before the rise of social media have not been proactive in shielding children exploited for views via ‘sharenting’. So family law seeking to protect children arguably needs updating in order to accommodate the modern forms of harm to children.

Identifying the Trigger for Protective Intervention

While it is easy enough to insist that family law provisions ought to be amended to protect a child who is likely suffering harm by their parent’s ‘sharenting’, it is arguably more intricate to implement these ideals into real world practice and law.

Within family law, determining when it is appropriate for local authorities to apply for action by the courts requires a “threshold” to be met that was first established in the case of Re B (A Child) [2013]. Baroness Hale made clear in Re B that “… the courts have the duty to assess the proportionality of the proposed interference...” Therefore, put into simple terms, the severity of the harm required for action, as seen by the courts, is inversely correlated with the likelihood of the harm. The threshold for intervention is ultimately based on the welfare of the child. Despite established methods triggering investigations and court applications to a child’s welfare, there lies a practical issue as to what should constitute the threshold trigger for legal intervention regarding ‘sharenting’ and children being posted online. If a parent or guardian decides to post something about their child that some may deem to be potentially embarrassing, there is little that legal institutions or individuals can do to prevent it and once it is published it is difficult to erase. Simply posting content of a child, whether embarrassing them or forcing them into a ‘sharenting’ video, won’t be enough on the surface to amount to local authority intervention or applications to court without sufficient threshold based reasoning, as set out in Re B.

Since the maximum bar for child protection is the removal of children from parents, local authorities will be unwilling to put the family, and more importantly the child, through a traumatic experience where it may not be warranted. Sometimes children may be too young to even comprehend their likeness being posted online, or to have the self-awareness leading to embarrassment by what is posted. While children may feel humiliation in the future, it is unlikely that a child who may potentially suffer mentally because of ‘sharenting’ should immediately warrant legal intervention. It would be considered unrealistic for them to do so, especially since there are limited resources distributed by local authorities. To inspect every family that films and posts their child for potential or existing harm would be wasteful of time and money. Since 98% of adults own smartphones in the UK and will use their devices to post content of their children whenever they want, it is simply not possible for local authorities to investigate every single time a parent posts potentially harmful content of their child. So the issue lies with which online activities in ‘sharenting’ specifically should trigger legal intervention, and what the intervention should be.

These days, intervention is often based in terms of identifying risks, preventing harm and providing care and protection where children in need of such sanctions are concerned. If someone were to come across a ‘sharenting’ account and have the suspicion that the children featured may be suffering in some way due to the content posted, should they then contact a local authority or courts to investigate? It hardly seems plausible as there is no way to accurately tell through a screen whether or not a child consented to, or is being harmed by participating in the ‘sharenting’. Even if the parents ask their child’s permission to be posted online, depending on how old they are, the child may not understand what it is they are consenting to which makes legal protection far more complex to apply in cases of ‘sharenting’, as opposed to physical cases of abuse. For example Michael and Heather Martin, the parents owning the “DaddyoFive” family channel, were accused of child abuse for uploading videos of themselves physically and mentally abusing their children. Unfortunately, it wasn’t until millions of subscribers and views later that concern for the wellbeing of the children amounting to intervention arose. The channel was eventually used as evidence of abusive behaviour by which the lawyers also argued that the way the videos were shared was also a form of abuse, resulting in two of the children involved to be taken into emergency custody. While the children were finally offered protection, legal intervention may have happened much quicker had the abuse been witnessed outside the context of the videos. If an onlooker watched a parent frequently abuse their children in public, the same way the Martin children were in their videos, it is hard to believe that authorities would not be called. So why is it different when the same harm occurs online for millions to witness?

The ”DaddyoFive” scandal, while being a US case, potentially demonstrates why legally protecting children from harmful ‘sharenting’ content posted online is not straightforward. ‘Sharenting’ has become such a norm in society that where there is harm imposed on children, it will not always catch the attention of viewers until millions of views later. Humphreys (2018) has suggested that parents sharing information about their children is simply a form of ‘media accounting’ and is the new societal norm. Thus, even in spite of risking significant harm to children, entirely stopping parents from ‘sharenting’ and posting potentially harmful content regarding their children on social media may not be a realistic demand. However, the establishment of a new French Bill (discussed later) which was filed by MP Bruno Studer, seeks to protect children’s right to privacy amid concerns of them facing harm in the future, and could set the new precedent for laws against ‘sharenting’, which may enable English and Welsh Family Law better control over children and their rights as well as protection against harm when being posted online.

What are the Possible Solutions?

While the CA 1989 may not give rise to effective local authority protection where risk of harm through ‘sharenting’ occurs, the violation of childrens’ rights to privacy may offer more sufficient legal and practical grounds than local authority intervention laws. However, policies acknowledging childrens’ rights can “conflict with the rights of the parents”. The Human Rights Act 1998, specifically Article 8, provides European citizens: “the right to respect for his private and family life, [and] his home...” creating a possible shield for parents to hide behind where family law imposes upon their “private and family life”. Thus the tricky paradox between the parents’ “right to family and private life”, has to be delicately balanced with the children’s own individual rights to privacy. Since Article 8 is not an absolute right it can be overruled in a number of circumstances, the most relevant in the context of this essay being: “...the protection of the rights and freedoms of others.”³⁵ So if existing family law provisions cannot be easily used to assess the harm to a child’s well-being arising through ‘sharenting’, it may well be able to be used where the “protection of the rights” of children are at risk instead. ‘Sharenting’ can lead to an invasion of privacy of the children involved, resulting in the identification of a child’s home or other information which could pose significant risks to the child. Adults who share information on social media platforms are conscious that it may become subject to commercial purposes, whereas underage children, whose information their parents share, are not aware of these commercial motives and thus their rights are infringed. It is difficult for parents, or anyone, to completely remove what is posted online due to screen recording and screenshotting content, and it could be used against the child. A typical parent will share at least 1,500 photographs of their child before the age of five, according to the London School of Economics, and over 80% of children have an online presence by their second birthday. One example is Colleen Ballinger who, while already having media fame, announced her first pregnancy which was viewed over 13 million times, and her three-year-old son has since become a staple of the channel. The paramount concern that familylaw should have is not necessarily the content itself of parents sharing parental experiences, but rather the fact that the children used in such content have lost rights to their likeness and privacy. Even if current legislation does not prioritise a child’s right to privacy as highly as a parent’s right to speak and post freely, child privacy issues should not be ignored. The recent case of Re J [2013] indicates Family Courts as being accommodating of a child bringing legal action to secure the removal of sharented information, but there is currently no tried and tested guaranteed means of success for children’s rights as a defense.

Rights are those interests deemed worthy of protection and other European jurisdictions have already begun developing laws where ‘sharenting’ and children’s protection of rights are concerned. Lawmakers in France recently green-lit a bill to target the growing number of influencers earning fame and money via their children through ‘sharenting’. Bruno Studer, a French MP, declared that: “The message to parents is that their job is to protect their children’s privacy.” Under the bill, a judge can even go as far as to ban one parent from posting a child’s pictures without authorization from the other and parents can lose their parental authority over their child’s image rights if the “image by both parents seriously affects the child’s dignity or moral integrity." Furthermore, the legislation would include the protection of children’s privacy among a parent’s legal duties. Therefore, the new French bill not only tackles the issue of children’s privacy online, but by altering the position of a parent’s legal responsibilities regarding children’s privacy online, it simultaneously tackles the issue of risk of harm arising from posting content that affects “the child’s dignity.” The UK already has parental responsibility laws governed by section 3(1) of the CA that dictates acts and responsibilities parents must provide by law to their children. Perhaps, instead of relying on local authorities and court intervention under s17, England and Wales should take a leaf out of the French lawmaker’s books, and enforce restrictions on parents ‘sharenting’ by amending parental responsibility duties as to the child’s privacy instead. Unlike the inconsistent laws of local authority intervention regarding ‘sharenting’, the laws governing children’s privacy rights and parental responsibility may have stronger potential to be utilised where the new phenomena of ‘sharenting’ is harming children.

In conclusion, existing provisions of the CA may not be readily sufficient for local authority investigations where harm to children transpires due to ‘sharenting.’ This may be based on the practical complexities of identifying the triggers warranting legal intervention due to the scripted nature of social media, as well as complexities balancing the needs of the child against the resources of the authorities and rights of the parents under Article 8 of the Human Rights Act. The possible solution to the harm inflicted upon children by ‘sharenting’ may lie in protecting children’s privacy rights and altering the parent’s legal responsibilities to their child’s privacy, rather than amend local authority intervention laws.

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