Disclosure in Child Abuse Compensation Claims – Part I

Malcolm Johnson, Solicitor and Rodney Jones, BSc, M Phil (Social Work), Social Care Expert consider the issues of disclosure in child abuse compensation claims. JPIL DECEMBER 2008

Introduction

The practical problems of evidence gathering soon become apparent in child abuse compensation claims. Ascertaining the correct source of information may be very difficult. Crucial information is held by a plethora of agencies, which can be very difficult about providing disclosure.  Finding records can be complicated by changes in the functions of agencies, their boundaries and by changes in their structures and location of records.

As in all personal injury cases, a determined approach can produce all manner of evidential benefits.  This article is in two parts, so as to examine some of the issues of evidence and disclosure.  Part 1 is concerned with the provision of social services and other childcare records.

The term ‘social services’ is used because this was the Department in the local authority that since 1971 provided a range of local authority personal welfare services including those to children at risk and in care.  Prior to 1971, the responsibilities lay with one separate Children’s Department. Over recent years, local authorities have been re-organised with the result that these services are now mainly amalgamated with the former Education Service into Children’s Services.

We have attempted to answer the following questions:-

• What are the Claimant’s statutory rights in relation to his social services records?
• How long do social services records have to be kept?
• What are the legal implications when the social services records are lost or incomplete?
• What are the Claimant’s statutory rights in relation to non personal data? i.e. generic records relating to children’s homes such as inspection reports
• Where are the sources of these records?
• What standards exist for the keeping of social services records?

Part 2 of this article looks at disclosure in litigation, including pre action disclosure, specific disclosure and applications against non parties, such as the police.

What are the Claimant’s statutory rights in relation to his personal records?

The law prior to the Data Protection Act 1998

An examination of the 1998 Act and its history is important because one of the very first reported cases on the issue of rights of disclosure concerned social services notes. The Act also provides the basic starting point for both Claimant and Defendant, before proceedings are issued (particularly in relation to redaction), as well as some indicators as to a data controller’s duties in relation to storage of records.

The 1998 Act has a number of predecessors going back to the early eighties. In 1983, the Department of Health and Social Security issued Circular LAC (83)14 to local authorities and health authorities pursuant to section 7 of the Local Authority Social Services Act 1970. This circular set out the principles governing the disclosure of information in social services case records. The general policy was that people seeking access should be able to discover what was said about them.

The Data Protection Act 1984 was also passed shortly afterwards, but this was enacted to protect data processed by computers, rather than paper files. There was then the Access to Personal Files Act 1987, which came into force on the 1st April 1989, and which in turn created the Access to Personal Files (Social Services) Regulations 1989.

These regulations only applied to information recorded after they came into force.

Gaskin v United Kingdom

Mr Gaskin was a care leaver who applied for access to his social services file from Liverpool City Council. The council argued that if disclosure were ordered, the public interest in the proper operation of the child care service would be jeopardised, insofar as the contributors to the records would be less than frank in their reports. The Court of Appeal agreed and so an application was made to the European Court of Human Rights.

Mr Gaskin argued that the refusal of access to his case records was a breach of his Article 8 rights – respect for private and family life as well as his rights under Article 10 – the right to receive information.

The European Court said that persons in the situation of the Applicant had a vital interest protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, confidentiality was also necessary for the protection of third persons. The Court went on to say that the system was only proportionate where an independent authority finally decided on the access question. That procedure was not available to Mr Gaskin and consequently there was a breach of Article 8, but not Article 10 (See also MG v United Kingdom (2002) 36 EHRR 22 where Gaskin was applied.).

The Data Protection Act 1998

Following the decision in Gaskin, the United Kingdom enacted the Data Protection Act 1998, which repealed the Data Protection Act 1984 and the Access to Personal Files 1987.

The 1998 Act came into force on the 1st March 2000 and it flows from the European Data Protection Directive (95/46/EC). There have now been a number of cases where the effects of the Directive and the 1998 Act have been discussed. In Campbell v MGN ([2002] EWCA Civ 1373) Lord Phillips said that in interpreting the Act it was appropriate to look to the Directive for assistance and that the main purpose of the Directive was the protection of privacy (Paragraph 16 of the judgment of Buxton LJ in Johnson v Medical Defence Union [2007] EWCA Civ 262).

Very briefly, the 1998 Act requires data controllers (both public and private) who process personal information to comply with a range of data protection principles (Schedule 1 Part I of the 1998 Act). Under these principles, data must be:-

1. Fairly and lawfully processed
2. Obtained only for one or more specified and lawful purposes, and not processed in any manner incompatible with those purposes
3. Adequate, relevant and not excessive
4. Accurate and kept up to date
5. Not kept longer than necessary
6. Processed in accordance with the rights of data subjects
7. Secure
8. Non transferable to a country outside the European Economic Area unless that country has an adequate level of protection for the rights of data subjects

Durant v Financial Services Authority

Data means (inter alia) information which is being processed by means of equipment operating automatically (Section 1(1)(a), or which is recorded as part of a “relevant filing system.” (Section 1(1)(c)) A “relevant filing system” was defined in the case of Durant v Financial Services Authority ([2003] EWCA Civ 1746) and it would appear that an individual’s social services records would be included in this definition. In addition section 1(1)(d) says that data includes an “accessible record.” This is defined as a health record, an educational record or various other forms of local government record (including social services records) whether this is contained in a “relevant filing system” or not (Section 68 of the 1998 Act and Schedule 12).

Sections 68 and 69 of the Freedom of Information Act 2000 amend the 1998 Act to add a further category (section 1(1)(e) which is “recorded information held by a public authority which does not fall within the existing definitions of “data” within any of paragraphs 1(1)(a) to 1(1)(d) of the 1998 Act.” It might include information about an individual which is held in an unstructured manual file or passing references to an individual appearing on a policy file.

Section 69 of the 2000 Act also inserts a section 9A into the 1998 Act. This section refers to “unstructured personal data” held by public authorities. A public authority (section 9A(2)) is not obliged to comply with the duty of disclosure unless the request contains a description of the data.  It is not entirely clear what kind of social services information would be “unstructured personal data” but it appears that the intention of the amendment was to extend as far as possible the scope of the 1998 Act in relation to personal data. Section 9A(2) says that the public authority is not required to comply with section 7(1) (duty of disclosure) unless the request for information contains a description of the data.

Therefore the 1998 Act is retrospective insofar as “data” will include social services records held by a local authority prior to the coming into force of the Act, and it may also include data which is “unstructured” such as a manual file. However, as we will see, other important protections (such as the requirement to preserve those records) laid down in the 1998 Act are more limited in their scope.

If a person wishes to request his “personal data”, he does so under section 7 of the 1998 Act. It should be noted that the definition of “personal data” within the meaning of section 1(1) was limited by Durant as are the uses of the 1998 Act. Auld LJ (Paragraph 26 onwards of the judgment)  said in that case, that the purpose of the Act was not to assist a litigant in obtaining discovery of documents that might assist him in litigation or complaints against third parties. Moreover the construction of “personal data” was a narrow one and mere mention of a person is not necessarily personal data. Auld LJ said that if the data in question recorded the data subject in a “biographical” sense and had that subject as its “focus”, then it would probably be personal data. This would appear to encompass a person’s social services or medical records, but not an investigation into some other person’s or body’s conduct that he may have instigated (Subsections 10(1) to (4) of the 1998 Act).

Durant was followed by a more recent case, Ezsias v The Welsh Ministers ([2007] All ER (D) 65) where the Claimant was dismissed as a consultant with a NHS Trust. He made a number of subject access requests for disclosure of his personal data, for the purposes of obtaining disclosure for his Employment Tribunal claim. When the Defendant failed to provide the requested disclosure, he applied for a declaration under Section 7(9). The High Court (following Durant) said that the data subject and the data controller had to have regard for the purposes of the subject access right. In this case, the Claimant had muddled those rights with his rights under Part 31 of the Civil Procedure Rules. The court also made a distinction between actual disclosure of documents and the right under Section 7(1)(c)(i) and Section 8(2) to information constituting personal data in intelligible and permanent form.  They were not one and the same. That meant that the 1998 Act did not entitle the Applicant to full disclosure of all materials and documents connected to him, which was what he had requested.

Whilst the Data Protection Act 1998 is not a litigation tool, it does provide the Claimant with a basic starting point, which can be set out in a Letter of Claim or a disclosure application before the relevant disclosure provisions of the Civil Procedure Rules are addressed. The 1998 Act may be even less helpful when preparing a disclosure application in relation to a non party, but as we will see below, it does provide a basic premise for some disclosure of information in relation to other parties.

Redaction of files

Redaction of social services files is a frequent issue in child abuse compensation claims. The 1998 Act, this states that if another person is likely to be identified from the notes, the data controller is entitled to refuse to comply with the data subject’s request unless under section 7(4):-

“a)   the other individual has consented to the disclosure of the information to the person   making the request, or
b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.”

In relation to consent, this can be a very lengthy, difficult and expensive procedure. In the case of Gaskin the European Court gave some guidance, saying that

“the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent.”

If there is no consent, Section 7(6) states that in determining whether it is reasonable to comply with the request without the consent of the other individual, regard shall be had to:-

“a) any duty of confidentiality owed to the other individual
b) any steps taken by the data controller with a view to seeking the consent of the other individual
c) whether the other individual is capable of giving consent, and
d) any express refusal of consent by the other individual”

In the writer’s experience, what tends to happen is that the local authority will blank out all names other than social workers. As a practical point, the process of redaction or blanking out is fraught with difficulty. The writer has come across a number of redacted files (both from the police and social services) where redaction has been incomplete, inconsistent or where it is possible to see the impression of the name behind the blank, or work out from other evidence the identity of the data subject. The Department of Health has issued guidance on access to social services records. This can be seen here. It is simply too expensive to try and contact each and every person in the notes to ask for their consent, even if their whereabouts can be established many years after the event. Consequently it is a good idea to address this problem early on in the case, and obtain the consent of the client’s siblings, parents or relevant others when making a first request for disclosure. It is also submitted that a local authority can show the details of a person who had died, for instance a parent.  However the local authority may not actually be aware of that person’s death, and so they will need some evidence, for instance a death certificate.  Redaction in child care cases can prevent an understanding of decisions and actions which were fundamental to the child.  In considerations of child abuse and care it is usual for the adults around the child to be the focus of issues of care and decisions.  Even if the names of adults and other children are redacted, it should be possible for the redactor to clarify the relationship of the name to the child.  This does not commonly occur but should be required to enable the subject to understand relevant decisions.

In decisions about the care of children, information about the parent or carer is often critical. Examples include their care of other children, mental health, abuse they receive or their drug use.  This is third party information where the data subject has a very strong interest in the data and the accuracy of it.

In Durant, Auld LJ set out a two stage process for subsections 7(4) – (6) of the 1998 Act. The first was to consider whether information about any other individual was necessarily part of the personal data that the data subject had requested. If such information was not necessarily part of the data subject’s personal data, then there was no need to undertake the balancing exercise in Section 7(4).

The second stage “the balancing exercise” only arises where the data controller considered that the third party information necessarily formed part of the personal data sought. Auld LJ said that the courts should be wary of attempting to devise any principles of general application either way. However again he pointed to the basic purpose of the Act, which was to protect privacy. Therefore if the redacted section gave out the identity of the source of some information on the data subject, in circumstances where that data subject had a strong interest in correcting the accuracy of that information, this would carry a great deal of weight towards disclosure.

Exempt Information under the Data Protection Act 1998

The 1998 Act also provides protection in relation to certain types of sensitive records, and these include medical, educational and social services records. Section 30 allows the Secretary of State to make orders exempting certain types of information from disclosure. The relevant orders are as follows:-

• The Data Protection (Subject Access Modification)(Health) Order 2000 (SI 2000/413)
• The Data Protection (Subject Access Modification)(Education) Order 2000 (SI/2000/414)
• The Data Protection (Subject Access Modification) (Social Work) Order 2000 (SI/2000/415) (as amended)

The rights of parents and receivers to obtain information are also dealt with under these provisions (See Regulation 5 of each of the 2000 Orders).

One of the main exemptions from disclosure in these regulations is where such disclosure would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person. In the writer’s experience it is rare for a local authority to refuse access on the grounds of distress to the data subject, although the authority may offer the services of a social worker to go over the notes. This can be distressing to the client particularly if there are revelations that family members were suspected of abuse. In practical terms, such a stance is unhelpful. In a recent child abuse case before Mr Justice Eady in the High Court, a Defendant local authority was criticised for not releasing key documents to the Claimant. Their explanation had been that the documents would cause him great distress, but that was not consistent with their case, namely that he had recently invented the allegations of abuse that formed the basis of his claim (Pierce v Doncaster Metropolitan Council [2007] EWHC 2968 (QB)).

The 1998 Act also draws a distinction between the “processing” (which can include disclosure) (Section 1(1) of the 1998 Act and Section 4(3))  of “data” and “sensitive personal data.” Sensitive personal data includes information as to a person’s physical or mental health or condition, or his sexual life. It can also include the commission or alleged commission by the person of any offence (Sections 2(e) – (h) of the 1998 Act).  A data controller who processes sensitive personal data must, in addition to satisfying one of the criteria in Schedule 2 of the Act, also comply with one of the conditions in Schedule 3. Schedule 2 says that the data subject must give his consent, whereas Schedule 3 says that the consent must be “explicit”. It is not clear what the difference is, but it is suggested that “explicit” means that the data subject would have to be fully informed of all the relevant facts.

These issues can be solved by a court order. Schedule 2 of the 1998 allows processing “for the administration of justice”  (Schedule 2, paragraph 5(a) of the 1998 Act) whilst Schedule 3 provide that processing is allowed if it is necessary for the purpose of any legal proceedings (Schedule 3, paragraphs 6(a) –(c) of the 1998 Act). Furthermore section 35 of the 1998 Act provides that personal data can be disclosed where required by a court order, or where it is necessary for the purpose of any legal proceedings.

We deal with the disclosure rights of other persons and the rights of the client to forbid the disclosure of his own records in Part II. Section 35(1) appears to sweep away the provisions of the 1998 Act. However it is submitted that the criteria in the Subject Access Modifications Orders Schedules 1 & 2 and sections 7 and 10 should still be argued before the court in inter partes or non party disclosure applications, quite apart from the other criteria, which are found in statute, caselaw, the Civil Procedure Rules and the Human Rights Act 1998.

The Caldicott Principles

Today’s social workers should also rely on the Caldicott Principles. These are guidelines that are followed by Social Care and Health professionals regarding the use of person-identifiable and confidential information. Professionals should:-

• Justify the purpose(s) of using person-identifiable and confidential information
• Only use information when absolutely necessary
• Use the minimum that is required
• Access should be on a strict need-to-know basis
• Understand their responsibilities
• Understand and comply with the law

The Caldicott review of personally identifiable information in 1997 recommended that “Guardians” of personal information be created to safeguard and govern the uses made of confidential information within NHS organisations. By LAC (2002) 2 that standard was extended into local authorities with social services responsibilities, which were expected to have appointed a Caldicott guardian by the 1st April 2002.

How long do records have to be kept?

In the writers’ experience, the retention of social services records by local authorities varies widely. There are cases where the local authority will simply say that the records have been lost or destroyed, but it is not clear why or how that has happened. If a local authority has lost or destroyed the records it was required to keep, there may be issues which can be pursued about this failure.

When seeking the records it is always a good idea to ask the local authority to explain their records retention policy at the relevant periods of time.  Reminding the local authority of the duty in some circumstances (and usual practice in others) to retain records may help.  Local authorities tend to give little regard to record storage and often cannot provide a clear statement of policy.  The solicitor for the local authority may need encouragement to have the various recesses of offices, including their own, searched.

The data protection principles in Schedule 1 of the Data Protection Act 1998 contain some relevant guidance. The fifth principle states:-

“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

The seventh principle states:-

“Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”

The ways in which these principles should work are set down in Schedule 1 Part II.

The seventh principle is important because it is a relevant factor when the data controller in question has to register with the Information Commission. Sections 18(1) and (2) of the 1998 Act state:-

“(1) Any data controller who wishes to be included in the register maintained under section 19 shall give a notification to the Commissioner under this section.

(2) A notification under this section must specify in accordance with notification regulations
(a) the registrable particulars,and
(b) a general description of measures to be taken for the purpose of complying with the seventh data protection principle.”

So a local authority in possession of children’s records must set out the measures that they have taken to comply with the seventh data protection principle.

Whilst there are no time limits set out under the 1998 Act, and these principles only appear to apply after 1998, there is clearly a statutory duty on the local authority to have a coherent system for storing sensitive records. That is the system that the Claimant may wish to see.

This issue of records retention came up in the educational negligence case of Smith versus Hampshire County Council ([2007] EWCA Civ 246). The Court of Appeal had to deal with a claim brought by a man against a local educational authority, for failure to address his dyslexia.  He issued proceedings in 2002 at the age of 23. The Court of Appeal had to consider the provisions of section 33 of the Limitation Act 1980. In this case, the problem was that there were no educational records. Longmore LJ summarised the situation at paragraph 35 of his judgment.

“The position on documents is that Hampshire are unable to find any relevant documents since the practice was that, if a pupil left the area, as Mr Smith did in February 1993 to go to a school in another area such as Knowsley, his documentation would have been sent to Knowsley Council at the same time as the pupil travelled there. Knowsley has said that their policy is not to keep documents for more than 5 years after the pupil leaves school. Since Mr Smith left school in June 1994 the relevant documentation would have been destroyed in 1999. It is not suggested that this policy is in any way wrong. Even if there had been a policy to keep all documents until a child was 21 in order to cater for the fact that the time limit for a claim for personal injury only begin when a pupil has reached the age of 18, the relevant documents would still have been destroyed at the end of 1999 or 2000 and would not have been available for a claim begun in 2002……..The question must remain – how is it possible to have a fair trial in the absence of any relevant documentation?”

In this case the claim could not proceed because of the absence of records and the resulting prejudice to the Defendant but there was a clear policy to show when and why the records were destroyed. It might have been a different matter if the records had been destroyed before the time set by the policy.

The Data Protection Act 1998 contains transitional provisions to enable local authorities to bring their records systems up to speed. The broad effect is that the Act will not assist a Claimant who is being told that his records from the 1970’s and 1980’s are now missing.  However they might assist a Claimant who can show that his records did exist in say 2002, which might well be the case if he can show that he was just leaving care at that time.

Guidance issued by the Information Commissioner advises data controllers who hold manual data to identify which data are eligible for transitional relief during the transitional periods and put in place audit procedures which enable them to identify which manual data were held by them immediately before the 24th October 1998 (Paragraph 6.10 of the Guidance on the Information Commissioner’s website which can be found here).  Again this might provide an insight into what happened to pre 1998 records.

It should be noted in passing that Section 13(1) of the Data Protection Act 1998 provides a remedy in damages to any individual who suffers damage by reason of any contravention of the Act.

What are the implications when the notes are lost or incomplete?

It is important to establish by means of expert social care evidence whether the records before the court are incomplete because some may have been destroyed, or whether the incompleteness itself is evidence of negligence, i.e. failure to review a child in care.

This point came up briefly in the case of L v London Borough of Tower Hamlets and Tower Havering ([2000] EWCA Civ 72) where a foster child was abused by her foster father. There were regular visits by a social worker from Havering up until March 1980, but there was then a gap in the notes up until August 1980. May LJ said that the gap in the notes could only reasonably be explained by missing documents, which was understandable after 20 years, but that in itself was not indicative of abuse.

A different view was taken in the case of Pierce v Doncaster Metropolitan Borough Council the court had to consider whether there had been a breach of duty in allowing the Claimant back into his parents’ care in 1977. The Defendant’s social care expert had submitted that the relevant persons would have been monitoring the Claimant’s progress and welfare, at all material stages, and that they must have reached defensible conclusions on the matter. Eady J said at paragraph 53 of his judgment:-

“I cannot accept the proposition that the absence of any evidence of a careful review (statutory or otherwise) of the Claimant’s position prior to his return can be explained on the basis that everything must be presumed to have been carried out properly; nor that the lack of documents can be accounted for as “lost in the move”. The records around this time suggest to me that the overwhelming probability is that what came into existence is still available. ”

The Defendant’s expert evidence relied upon two assumptions (a) that records had been mislaid and (b) that the Defendant’s staff could be relied upon to have carried out their responsibilities with all due care. That was not accepted by the court.

What are the Claimant’s statutory rights in relation to non personal data?

The Freedom of Information Act 2000

The 2000 Act came into full force on the 1st January 2005 and it extends the Data Protection Act 1998 so as to allow individuals the right to access non personal information from public authorities  including local authorities, the NHS and schools. Section 5(1) empowers the Secretary of State by order to designate further persons or bodies as public authorities for the purposes of the Act, where it appears that they are providing functions of a public nature, or it provides under contract to a public authority, a service, which is a function of that authority.

The 2000 Act now covers over 100,000 public authorities in the United Kingdom.

The 2000 Act is particularly useful, when the Claimant’s lawyer is seeking to establish the reasons for decisions being taken by a local authority, which relate for instance to issues of childcare policy. As with the Data Protection Act 1998, the 2000 Act should not be used as a litigation tool, but there is nothing to prevent a Claimant’s lawyer setting out his client’s entitlement under the 2000 Act as a starting point.

As we will see, these decisions may be exempt if they concern sensitive issues such as children’s homes. However it might be useful to see a local authority’s child protection policy over a particular period of time, in relation to certain facilities where children were known to be present.  In one case handled by the writer, the local authority was asked for the child protection policy that existed in relation to all council owned leisure facilities. This elicited a series of documents from around 1980, which showed that there had been a comprehensive policy in relation the risk of abuse in such facilities.

The basic duties are contained in section 1. Section 1(1)(a) requires the public authority to confirm or deny that information is held by the authority, and Section 1(1)(b) contains a duty to communicate information. Section 19 states that the authority must maintain and review a publication scheme whilst Section 45 of the Act requires the Secretary of State to issue a Code of Practice providing guidance to public authorities on the way in which they should respond to requests for information.  In addition Section 46 of the Act requires the Lord Chancellor to issue a further Code in relation to records management.

The public authority is required to give reasons for non-disclosure under section 17(1). All public authorities are under a duty to adopt schemes for the publication of information which must be approved by the Information Commissioner.

There are then categories of exemptions, which are classified as absolute or qualified. Absolute exemptions include information reasonably accessible by other means (section 21), information contained in court records (section 32) and personal information (section 40) where the applicant is the subject of the personal information or the application is a third party. Section 40 would be used to deny the media information about the location of a convicted paedophile, although section 38 (see below) would also apply.

Section 41 exempts a public authority from the section 1 duties where disclosure would constitute an actionable breach of confidence, although a court would not enforce an obligation of confidence where to do so would be contrary to the public interest, or where the information discloses some “iniquity” on the part of the public body.

Section 42(1) exempts information in respect of which there is a claim to legal professional privilege.

There is a further exemption under section 30(1) that exempts a public authority from communicating information, where that information has been held for the purposes of an investigation. The section also excludes the duty to confirm or deny. Consequently a local authority investigating abuse in a care home could rely on this section, although it could be overridden by a court order. Section 30(2) applies the same exemption to information relating to the obtaining of information from confidential sources.

Section 36(2)(b) provides that information may be exempt (subject to the public interest) if in the reasonable opinion of a qualified person, disclosure would, or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation.

Section 38 exempts a public authority where disclosure of information would endanger the safety of any individual. This is a similar provision to that found in the Data Protection (Subject Access Modification)(Health) Order 2000.

Section 44 covers information which is covered by prohibitions on disclosure (such as Children Act proceedings).

As with the Data Protection Act 1998, the 2000 Act contains its own enforcement procedure under sections 50 to 56. Public authorities are also required under section 45 to establish an internal complaints procedure. There is a right of application to the Information Commission and an appeal right to the Information Tribunal. However Section 56, in contrast to the Data Protection Act 1998, the 2000 Act forbids a private law action.

There is a Code of Practice issued under section 46 of the 2000 Act on the management of records.   Paragraph 3 of the Code states:-

“Any freedom of information legislation is only as good as the quality of the records to which it provides access. Such rights are of little use if reliable records are not created in the first place, if they cannot be found when needed or if the arrangements for their eventual archiving or destruction are inadequate. Consequently, all public authorities are strongly encouraged to pay heed to the guidance in the Code.

The Public Records Office publishes standards, guidance and toolkits on the management of records, in whatever format, covering their entire life cycle.

• Other Statutes relating to non personal records

There were a number of statutes and statutory instruments prior to the 2000 Act which set out the duties of local authorities and other public institutions in relation to publication of records. The following statutes are examples:-

The Education Act 1944 Schedule 1 Part II para 9 contains the duty to publish minutes of education committees
The National Assistance Act 1948 – duty to publish register of homes
The Public Records Acts 1958 and 1967 – see below
The Public Bodies (Admissions to Meetings) Act 1960 – minutes of public meetings
The Local Government (Records) Act 1962 – local authority records
The Local Authority Social Services Act 1970 – social services records
The Local Government Act 1972 (as amended) – publication of the minutes of meetings
The Children Act 1989 section 17 and Schedule 2 – Section 71(1) provides for a public register of child minders and premises.
The Local Government (Access to Information) Act 1985 – access to information by a local authority
The Local Government Act 2000 – meeting minutes held by local authorities

• The Public Records Act 1958

This Act originally established a system whereby public records were made available to the public 30 years after their creation. It has been substantially amended by the Freedom of Information Act 2000.

The 1958 Act establishes an Advisory Council on public records and the actual repository for public records is the National Archive at Kew  . This can be a very useful source of information because the Archive has legal records, which include details of criminal convictions. It is possible to make an on line search but because the repository is so vast, it may be more cost effective to employ one of the independent researchers who are advertised on the National Archive’s website.

Not all public records are kept at Kew. Local records, such as court or hospital records are held in approved local archives.

Section 3(1) of the 1958 Act states:-

“It shall be the duty of every person responsible for public records of any description which are not in the Public Record Office or a place of deposit appointed by the Lord Chancellor under this Act to make arrangements for the selection of those records which ought to be permanently preserved and for their safekeeping.”

Section 3(1) does not say precisely how the arrangements for selection of those records is to work but it does say that such records will be “permanently” preserved. However paragraph 7(1) of the Schedule to the Act says that the Lord Chancellor can add to the type of records selected for preservation by order. Paragraph 7(2) says that a question of whether any records or description of records are public records shall be determined by the Lord Chancellor. His decision on such questions shall be put in his annual report to Parliament, and from time to time he shall compile lists of the categories of records which are public records.

Section 3(4) says that records selected for permanent preservation under this section shall be transferred not later than thirty years after their creation to the Public Record Office. The subsection then goes on to say:-

“Provided that any records may be retained after the said period if, in the opinion of the person who is responsible for them, they are required for administrative purposes or ought to be retained for any other special reason…..”

Section 9(2) says that a copy of or extract from a public record in the Public Records Office shall be admissible as evidence in any proceedings, provided it is certified as true and authentic. The Public Records Act 1958 (Admissibility of Electronic Copies of Public Records) Order 2001 amends the 1958 Act in order to enable the Public Record Office to authenticate copies in electronic form of public records so as to make them admissible evidence in legal proceedings when they are viewed on the Public Record Office website.

Under section 46, the Lord Chancellor has to issue a Code of Practice providing guidance to relevant authorities as to the practice which it would, in his opinion be desirable for them to follow in connection with the keeping management and destruction of their records.

Schedule 1 of the Act defines public records.   These are very briefly administrative and departmental records belonging to the government, in particular:-

“(a) records of, or held in, any department of Her Majesty’s Government in the United Kingdom, or
(b) records of any office, commission or other body or establishment whatsoever under Her Majesty’s Government in the United Kingdom.”

Paragraph 3 of Schedule 1 then sets out a Table of the “bodies and establishments.” By way of example these include the Department of Health and Social Security and the Home Office. Other establishments (Part II of Schedule 1) include the Commission for Social Care Inspection, which took over the work of the Social Services Inspectorate in April 2004.

Paragraph 4 of Schedule 1 of the Public Records Act 1958 deals with the records of courts and tribunals. The writer has found that locating court records is difficult. It is important to have the precise times that the court cases were heard and the date of the conviction or sentence. The Central Criminal Court does keep records going back very many years and in one case, convictions of an abuser were obtained from the 1970’s.

Where are the sources of these records?

There may be problems at the outset of a case, establishing the source of the Claimant’s personal records. The early 1970’s saw major changes to the responsibilities of the former Children’s Departments, when separate Welfare, Children’s and Mental Health Departments were combined into the new Social Services Departments.  Before the adjustments had settled, in 1974, Central Government made major changes to local government.  In some areas County Councils became responsible for the social services and education functions of a city council which they encircled. Some County Councils ceased to exist. Metropolitan District Councils were created in the large cities.  Some boundaries of some local authorities were changed.  Most of the “doughnut” city authorities have now had their social services and education functions returned, during the 1990’s.

Thus records on any live cases would be transferred to the local authority which took over social services functions, and this would sometimes include closed records.  On each occasion there would be a document agreed between each local authority on the disaggregation of functions.  This should specify the criteria by which cases and records were divided between the authorities.

One example would be the London Metropolitan Archives, which holds some records for children living in the old London County Council area.

This is an area, where the social care expert should be able to assist. The writer has handled a case where the social care expert advised that we make a request for the records of the Commission for Social Care Inspection. During the material period (the seventies) the Social Services Inspectorate ran the “DHSS Consultancy Service” in Room B1309 at Alexander Fleming House. This list (which is still used) contains a formal list of persons considered unsuitable to work with children and so it was possible that they also had records on one of our client’s abusers.

In another case, it was established that a private school for the deaf opened in the 1950’s was subject to inspection by the then Ministry of Education. The successor, the Department for Education and Skills  was able to supply detailed records of the inspections carried out, throughout the material period (in this case the 1960’s).

Another body which is included under Schedule 1 Part II of the Public Records Act 1958 is the General Social Care Council (“GSCC”), which promotes good practice in social care. The GSCC was established under the Care Standards Act 2000 in October 2001. It maintains the Social Care Register, which is a register of people who work in social care, and who have been assessed as trained and fit to be in the workforce. The GSCC is useful because it may well have the details of social workers involved in a Claimant’s case. Obviously in terms of social care history, it is a relatively new organisation and in the writer’s experience, social workers are often very reluctant to give evidence. There is an online search facility on the website.

What standards exist for the keeping of social services records?

The proper maintenance of records is bound to be one of the cornerstones of any profession. The Department for Education and Skills guidance “Common Core of Skills and Knowledge (2005)”  www.everychildmatters.gov.uk/deliveringservices/commoncore/. lists a number of different skills that “practitioners” within diverse childcare agencies are expected to possess. Amongst those skills is the ability to record and share information in an accurate and timely fashion.

History has taught childcare agencies to record carefully. Social services files are often subject to scrutiny by official inquiries. The inquiry into the death of Victoria Climbie made a number of criticisms of the quality of record keeping (see below).

Records management also has general standards. The International Standards Organisation and the British Standards Institute both publish standards on record keeping.   The Public Records Office also has standards for the management of public records and they actively advise and assess government in this area.

There is also the Records Management Society of Great Britain, which provides support for people working in the fields of records and information management. Their website can be found at www.rms-gb.org.uk.

• The history of record keeping by social services

In the post war period, there were no national standard formats for child care case records and this state of affairs continued up until the 1980’s. An established Child Care Officer during the 1970’s might have between forty and sixty cases and although record keeping was expected, relating to people and “doing the job” was a far higher priority. Where monitoring of cases and records occurred, this was usually by a Senior Officer conducting reviews of the case. The notes might convey thoughtful and conscientious considerations, as well as clear decisions but concerns were not always recorded. Recording practices improved during the 1980’s with lower caseloads, higher standards of reporting, the requirements of new legislation, guidance and changing technologies.

Possibly the most striking difference between social services records in the past and today was that notes were written without any regard for access by the child. They were brief, setting an outline of what had occurred, the context and the reasons. Records were not written to account for every statutory duty, although they were expected to reflect significant statutory duties. The aim was to provide main identifying and personal information and account for the major events and changes in a child’s life.

Following the Children Act 1975, the practice of record keeping improved in many local authorities, although it remained a matter of discretion. Some authorities set time periods for records retention, whilst others did not. Those periods might vary from 25 to 50 years. Some local authorities might maintain a Head Office file of copy reviews and papers which had been sent to other offices although it was not unknown for staff to actually destroy records when there was an office move.

There were extensive statutory requirements for record keeping in particular childcare situations. These main statutory requirements which should be borne in mind when seeking records.

Foster care

After the Boarding Out of Children Regulations 1955 (Regulations 10 and 11) the local authority was required to retain the case records for any child boarded out by them or boarded out in their area and for those for whom the local authority performed supervisory duties and to maintain and retain a register of boarded out children. The requirement was to retain all these records at least until for three years beyond the 18th birthday of the youngest child i.e. until the 21st birthday.

Children’s Homes

Children’s homes regulations did specify the type of records to be held, but gave no requirement to retain them after the child left until 1991.
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In 1951 the Administration of Children Homes Regulations Schedule 3 and its accompanying guidance specified the records which should be kept in each Children’s Homes.  These included a register of admissions and discharges, fire drills, fire precautions agreed with fire service; records of food, of punishments, records relating to each child and specifically a record book for events of importance connected with the home.  The purpose of such books was to enable staff coming on shift to check on key events and for the monthly visitors to read to form an impression of the life of the home.   Regulation 5 of the Administration of Children’s Homes Regulations 1951 stated that the administering authority was under a duty to appoint a medical officer, whose duties included the supervision of the compilation of a medical record for each child.

In 1972 the new Community Homes Regulations and Guidance did not specify each type of record to be kept with each local authority home for children.  The 1972 Community Homes Regulation 3 required the local authority to arrange that there was a visit to each children’s home and report on the visit to the responsible body, at least monthly.  In 1991 the Report of the Inquiry into Pindown  was published.  This recommended that these statutory visits should be made without notice and that the visitor’s reports should go unaltered to the appropriate Committee of the Council.  The Children’s Homes Regulations 1991  continued this requirement for monthly visits and reports.

The Pindown Inquiry was also the subject of Local Authority Circular (91)10.  Recommendation Four was that Social Services Departments should ensure that log books used in children’s residential establishments should be completed in such a way as to show who was on duty on the day, all entries should be clear and appropriate, signed and dated.

From 14 October 1991 the local authority was required by Schedules 2 and 3 of the Children’s Homes Regulations 1991 to keep specified records.  Those required included “a daily log of events occurring in the home, including the names of any visitors to any child accommodated in the home.”  The other records required included the staff duty roster and a record showing specified details of each person employed in the home.  For the first time the period for retention of these records was specific. Regulations 15 and 17 in effect required records about the child to be kept to their 75th birthday and all other records about the home (except menus) for fifteen years.

All Children in care/looked after by the local authority no matter where accommodated

In October 1991, statute for the first time laid down one period for retention of records of all children who entered the care of the local authority.  This period reflected the importance of life history information for the individual.  The Children Act 1989 and Regulation 9 of the Arrangement for Placement of Children Regulations 1991  required the local authority to retain records for each child who had been in care to the 75th birthday of the child ‘looked after by the local authority’.  The only exception being if the child died before age 18 in which case the records should be retained until 15 years after the death.   The same period for retention of records applies to children privately fostered.

Adoption

The Adoption Agency Regulations 1976 Regulation 11(b) required that any recorded information in relation to an adoption be preserved for at least 75 years from the date of any adoption.  From October 1991 (when the Children Act 1989 was implemented) the minimum requirements for Local Authorities to retain records were: 75 years after the Adoption Order for records of adoption including children and applicants.

General policy

In relation to records retention policy, it was good practice to retain the field social work records of each child where the work was to prevent entry into care or since 1991 provide services to a child in need.  The same applied to children at risk of harm including investigations into child abuse unless the child entered care.  Policy if not practice in most departments was to keep the child protection for the same period as would apply for a boarded out child – until the 23rd birthday.  There was no statutory duty to retain all the records.

• Lessons learned on records keeping

Poor record keeping has long been a criticism in social services inquiries.  Of course there is a balance between doing a job and recording.  Recording takes time which can be otherwise deployed.  Sharp and relevant recording is a skill.  The usefulness of recording is diminished if there is no communication with others who wish to read or hear and understand its significance.  Recording may or may not reflect the considerations within the staff team, within and between local agencies, in the management of resources or the legal advice given.

In 1991 the Department of Health produced a report entitled Child Abuse.  A Study of Inquiry Reports 1980-1989.  This contains reference to lessons learnt and recording. The Department of Health report – “Someone else’s children: inspections of planning and decision making for children looked after and the safety of children looked after” (published by the Department of Health – 1st January 1998)  (www.dh.gov.uk) identified a number key issues in relation to record keeping, which included concerns about missing documents and failures to keep comprehensive records.  Another report commissioned by the Department of Health “Learning from Past Experience – A Review of Serious Case Reviews” (2002) summarised the concerns arising out of some 40 Serious Case Reviews of children. Two of the concerns expressed most often in the reviews were inadequate sharing and poor recording of information.

The inquiry into Victoria Climbie’s death – Report of an Inquiry by Lord Laming – published by the Department of Health and the Home Office – January 2003 (www.victoria-climbie-inquiry.org.uk) made a number of recommendations in relation to record keeping by social services. Recommendations 58 and 59 state:-

“Directors of social services must ensure that every child’s case file includes, on the inside of the front cover, a properly maintained chronology. Paragraph 6.629”

“Directors of social services must ensure that staff working with vulnerable children and families are provided with up to date procedures, protocols and guidance. Such practice guidance must be located in a single source document. The work should be monitored so as to ensure procedures are followed. (paragraph 8.7)”

The Inquiry stressed said that social workers must be able to rely on accessible, accurate and relevant information for decision making purposes.

“Working together to safeguard children” published by the HM Government (2006) (www.everychildmatters.gov.uk) states at paragraph 5.149:-

“Good record keeping is an important part of the accountability of professionals to those who use their services. It helps to focus work, and it is essential to working effectively across agency and professional boundaries.”  Paragraph 7.47 of the previous “Working together to safeguard children” (published by the Department of Health in 1999) uses almost exactly the same language .

There is also caselaw that provides guidance. Justice Bracewell in Re E Care Proceedings: Social Work Practice)  set down a number of principles in relation to record keeping by social workers. This was a particularly disturbing case where children from a family were subjected to constant physical and sexual abuse over a twenty year period. The principles were as follows:-

1) Every social services file should have as the top document a running chronology of significant events kept up to date as events unfold
2) Lack of co-operation by parents is never a reason to close a file or remove a child from the child protection register
3) Referrals by professionals such as health visitors and teachers should always be investigated and given great weight
4) Those with power of decision making should never make a judgment without having full knowledge of the files and consulting those professionals who know the family
5) Children who are part of a sibling group should not be considered in isolation but in the context of the family history.
6) Cases should be time limited and an effective timetable laid down within which changes need to be achieved.

The court commented that had the above guidelines been followed in this particular case, there would have effective intervention many years ago.

More recently we have the case of X (1) Y (2) v The London Borough of Hounslow where a couple with learning difficulties and their two young children were seriously assaulted in the flat where they lived by a local gang of youths. There had been substantial involvement over the years with social services and repeated requests for a transfer to the local housing department. Both social services and housing had been well aware of the Claimants vulnerability for some considerable time. Initially before the litigation began, the family went through the local authority’s complaints procedure. Two independent experts concluded that the standard of record keeping by the statutory agencies had been inadequate, and that this was one of the factors that led to a failure to protect the family. At the trial of the civil action, that finding was then taken up by Maddison J and listed as one of the reasons for his decision in favour of the Claimants.

• The modern Integrated Children’s System

Modern record keeping by social services should now be viewed within what is a relatively recent development in social services, the Integrated Children’s System. Essentially it seeks to introduce a single approach to the key processes of assessment, planning, intervention and review of children and their families, and in time it will build a national database of children which will be accessible to various agencies.

The system has a number of key features:-

• A conceptual framework, a method of practice and a business process to support social workers in undertaking their key tasks. The system is designed to be supported by an electronic case record system so that social workers can record, collate, analyse and output the required information.
• A set of data requirements for children’s social care, derived from individual records
• Records which demonstrate how information gathered by social workers can be organised and used to generate particular records or report. In effect an e-social care record.

Each local authority is required to produce its own solution for the Integrated Children’s System. According to Local Authority Circular (2005)3 all local authorities were required to have fully operational systems by the 1st January 2007 although not all have succeeded.

Conclusion

That concludes the discussion on records. It is hoped that readers will take something away with them and the writers welcome any comments. In the second part of this article we consider the issues that arise during the course of civil litigation.