Testing by Minors: Risk Prevention for UX Pros

Posted on: 12:13 PM by UX Magazine

Many usability professionals hesitate to conduct testing with children because of the potential risks of working with them. Could they be sued for something that happens to the children during, or in connection with, the testing? How should professionals treat children differently from adults in order to minimize the chance of a lawsuit? The most important concern, from a legal point of view, is the risk that a parent will claim that their child was harmed in some way during the study and that the practitioner is responsible. There are two main ways to minimize the chances that this will happen:

  1. Make sure that you provide full and clear information about the testing procedure so that the parent can give his or her informed consent to let the child participate.
  2. Make sure that the test is conducted in a reasonable way, determined by usability professional standards.

Full disclosure and reasonable procedures are your best lines of defense. The table below shows an overview of the best ways to ensure that your research with children stays well within legal bounds. This table is based on my own opinions and suggestions and you should not rely on it as legal advice. Always check on the pertinent laws in your location and, when necessary, consult your organization’s legal staff.

Legal concepts in testing with minors
Concept Considerations
Minor Any person who has not reached the “age of consent,” commonly set at eighteen, but variable by location. Informed consent must be provided in writing by a parent, guardian, or recognized caregiver (“parent” hereafter).
Informed consent Parents need to have as much information as possible, before they sign the consent form, about what the testing will involve. If they are fully aware of what is happening with their child, there is less risk that they can claim later that they did not give their informed consent. The safest way to provide this information is to take a belt-and-suspenders approach: provide the information in written form and go over it with the parents in person.
Medical risks If the child will test a hardware product in any way—even assembling components or setting switches—the specific task and any attendant risks, even if remote, should be made clear to the consenting parent. Also, consider possible challenges to vision or hearing and mention them in the consent form.
Offensive material If your test potentially involves exposing children to any material that could be considered sexually explicit or culturally or politically sensitive, that potential exposure should be explained to the parent in advance and noted in the consent form.
Promotional uses Include permissions for taping sessions and for using the minor’s name (which is unlikely) or likeness in photographs, audio, and video, including electronic transmission via the Internet.
“Reasonable” process First, make sure that you provide full and clear information about the testing procedure so that the parent can give his or her informed consent to let the child participate. Second, make sure that the test is conducted in a reasonable way, as determined by usability professional standards.
Physical contact The safest course of action is to avoid any unnecessary touching when working with children. Many children—and more to the point, many parents—are uncomfortable with any degree of touching. If the nature of the testing requires a practitioner to touch the child, this should be disclosed to the parents in advance as part of the testing disclosures.
Parental access Most locations have no legal requirement for parents to stay with their children during the testing process. To make the testing process as transparent as possible, and to minimize the risk that parents can claim that they were unaware of what was happening in the testing room, look for ways to make it possible for parents to view the testing process, whether or not the parents choose to take advantage of it.
Recruiting from schools To protect everyone involved, it may be prudent to get a consent form from the school district, superintendent, principal, or headmaster, as well as the parent.
Damages Children cannot generally be held responsible for any damage they cause to testing equipment. In some locations, parents can be held liable, but it may be more difficult to hold parents accountable when they cannot supervise the children, as is often the case during testing. The only reliable generalization is that practitioners cannot count on parents to pay for any damage their children cause.
Payment In most locations, paying a child a stipend for participating in a usability test is perfectly legal. Paying the same child on a regular basis, however, may raise the question of whether the child has become an “employee” of the test administrator, a condition which would subject the administrator to a new and more complex set of rules. (Your state’s labor laws will determine when a minor can become a paid employee.) Performing an occasional usability test generally will not be considered “employment” in the eyes of the law.

Global Guidelines

“In the past, we were involved in projects where we conducted interviews, observations, and testing with infant participants in school and kindergarten settings in China. We never encountered any legal problems with it because we always get permission from the school or kindergarten, and we work with the help of the teachers.”

—Zhengjie Liu, Professor and Director, Sino-European Usability Center, Dalian Maritime University, People’s Republic of China

“In Italy there is a special requirement for parents to be in the same room with the children during test sessions. We tested with children ranging from six to twelve years old, and explained our procedures and policies to the parents. For example, they could help their children to start the navigation and then intervene if their children required any particular help on items that the facilitator was not responsible for. The main aim was to create the conditions for a natural (not artificial) condition of usage of the PC and website. We found that we were able to run the studies with no particular problems. In a few cases, when the children were under seven years old, the presence of one parent was an encouraging factor for the kids to be active and responding.”

—Michele Visciola, President, Experientia, Italy

“In Latin America, legal guardians need to give their permission for their children to participate in testing. How do we do it? We always approach mothers and invite them to be part of it. In user testing, mothers are behind the glass with a researcher. We brief them before the test as to what we will do. They usually don’t oppose and, in fact, have a good time watching how ‘smart’ their kids are.”

—Luis Arnal, Founder and President, In/Situm, Mexico

“A common practice in the Netherlands is recruiting via schools or kindergartens. After getting permission from the school to [take a] break in the curriculum, it is important to convince the parents. Parents are very concerned about what will happen with the recordings, especially with Internet presentations. What often helps is breaking down the permission into smaller sections; for example, permission to report, to present offline, to present online but with censored faces, or not to present at all. Giving parents control over the recordings in this way gains trust and increases the chances for recruitment.”

—Wouter Sluis-Thiescheffer, UX Consultant, User Intelligence, The Netherlands

“In Australia, a key requirement for conducting user research with children is to obtain parental consent. If direct, unsupervised contact with children is required, then the researcher needs to submit to a ‘working with children’ check, which is essentially a police background check. In a general sense, the main concerns are the duty of care to children, child protection and privacy, and consent of parents. Rules vary between states.”

—Legal Advisor, Australia

“Professional ethics [in conducting usability research with children] in India are essentially those that are followed almost globally, like ensuring that the parents are made aware of the research, the level of participation required from their child, protecting the child’s identity, keeping the research environment comfortable, and so on. Following the common practices of testing with children ensures that the research is carried out according to the standards that are acceptable universally.”

—Suneet Kheterpal, Senior Design Engineer, C-DAC, India