Filming and Working with Under 18s
Anyone who has worked on a production where under 18s were involved will know that there is a whole other level of regulations and guidelines that need to be adhered to in addition to the usual contributor considerations.
When you are commissioned to produce a programme for a broadcaster you will be contractually required to make that programme in accordance with the Ofcom Broadcasting Code. The Code contains two main principles in relation to under 18s involvement in programmes:
- Due care must be taken over the physical and emotional welfare and the dignity of people under 18 who take part or are otherwise involved in programmes. This is irrespective of any consent given.
- People under 18 must not be caused unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes.
This ‘due care’ obligation is ongoing throughout the whole of the production process, including after transmission, and therefore should be kept under constant review.
In addition to the Code, Ofcom has also produced some Guidance on the involvement of under 18s in programmes. This is a helpful source for setting out what may be appropriate for you to consider and apply, depending on the circumstances of your particular programme. Taking these guidelines into account is crucial; in the unfortunate event of a complaint relating to the participation of under 18s in a programme Ofcom will consider the extent to which the guidelines have been followed.
In addition to Ofcom’s Code and Guidance each of the channels will have their own guidelines and advice in relation to filming and working with under 18s. Some of this information is readily available online whilst others will provide additional guidance and support once a programme is commissioned. Either way, it’s important that you consult with the commissioner throughout the process, often even before you have approached your potential under 18 contributors, to ensure that you don’t fall foul of what is expected and thereby breach your contractual obligations.
Ensuring compliance with Ofcom’s Code and Guidance and any specific commissioner requirements is a team effort. All members of the production team should be familiar with the relevant guidelines and rules that are applicable to the programme they are working on and how this has an impact on their part in the process. It is a particularly useful and worthwhile exercise to have a whole team ‘briefing session’ to ensure that everyone has a proper and thorough understanding of how to deal with the involvement of under 18s from the outset, and to ask any questions and iron-out any misunderstandings at an early stage.
In addition, most channels will require any member of the production team who has direct contact with under 18s to have an up to date Disclosure and Barring Service (DBS) check. During busy times these can take several weeks to be processed so applying for these as early as possible is a must.
Take a look through the Ofcom Broadcast Bulletin and you will see that a good proportion of the investigations are around the issue of consent. Consent when filming with under 18s is an area that often causes additional confusion and lots of questions are raised: Can a 16 or 17-year-old consent to filming themselves? Do I have to get parental consent from both parents? What if the under 18 only lives with one parent? What if the parents give consent but the under 18 doesn’t want to be filmed? Can a school consent to the filming of their students? Can consent be obtained after filming has taken place? All of these are valid questions in certain circumstances and often there is no black and white answer. Therefore, it is vital that you have answers to these sorts of questions before they even arise and that the whole production team are fully aware of the levels of consent needed and why.
In addition, as with all contributors, consent for the participation of under 18s must always be ‘informed’. Depending on the nature of the programme you are making this can go beyond merely giving a description of the programme and their involvement in it. For example, it may also be appropriate at this early stage to clearly outline the potential positive and negative consequences of their involvement in the programme, especially around transmission. You may also need to think about ongoing consent. There are circumstances where the signing of a release form at the outset of filming will not be enough to demonstrate informed consent, especially if filming continues over a long period of time or there are changes to the programme description or their role within it.
As previously mentioned, your duty of care to under 18s continues not only during filming but in the lead up to, and following, transmission of the programme. This is often a time where keeping in touch with contributors is not at the forefront of the production teams’ minds, or team members that were involved with filming have moved on to other productions. Having a robust ethos within the team as to how under 18s (and indeed all contributors) are handled will be invaluable at this point to ensure that best practices continue through post production and beyond transmission.
Potential considerations around this time may focus on any change in circumstances since filming took place and whether this may affect the edit or transmission. Have viewings been agreed? If not does this need to be reconsidered? Do schools need to be made aware of transmission so that they can offer support? What are the potential impacts of social media following transmission and how can you help minimise these? Having a plan in place at the outset of production will help you to navigate through this period and ensure that nothing is missed or overlooked.
It may be necessary to obtain advice from an independent expert to assess not only an under 18s suitability to take part in the programme but also to offer ongoing support throughout the production process. Whether or not such an expert is needed will depend on a number of factors including the individual themselves, the extent of their contribution to the programme and the nature of the programme. Giving consideration to the need for an expert at an early stage, and continuously reviewing this need, are vital elements of your ‘due care’ obligation.
Child Performance Licences
As well as obtaining consent from a contributor and/or their parents, you may also need to obtain a performance licence from the under 18’s Local Authority prior to filming taking place. Each Local Authority deals with applications differently and it will be for them to determine whether the contributor is “taking part in a performance” and if a licence is required. Whilst it is well established that children appearing in scripted programmes are ‘performing’, it is now also accepted that children appearing in other types of programmes where their participation is directed, manipulated or controlled in some way will also require a licence. This is another area that needs to be given early consideration in the production process; depending on the Local Authority you may need to allow several weeks for a licence to be processed prior to any filming taking place.
This is only a brief summary of some of the considerations needed when embarking upon a production involving under 18s. It is central to your programme’s success that any involvement with under 18s is properly planned for and that the whole production team understand, and are working to, the same guidelines.
It is recommended that, where under 18s have a significant involvement in your production, you have in place a ‘Working with Under 18s Protocol’ as soon as possible after commission – this may even be a requirement of the commission. With extensive experience of working on productions involving under 18s, we can work with you to better understand your contractual obligations and to help you give full consideration to all aspects of working with under 18s that may apply to your production – from finding potential contributors to providing support through transmission and beyond.
© Laura Hammond, 2018
Laura is Director of The Cow Shed Media Services, a company offering business affairs and compliance advice to independent production companies throughout the entire production process.
Laura has provided legal support and advice on numerous programmes involving under 18s including the BAFTA winning Educating… series, Tiny Tots Talent Agency and What Would Your Kid Do?