Warm applause to the first person who gets the reference right.
I had not been aware that this issue was even being ventilated, so I read this judgment with a degree of nervousness, particularly when I got to the passages suggesting that a Local Authority would need to go through all of their records and throw out the ones older than six years.
C, R (on the application of) v Northumberland County Council 2015
This was a judicial review of Northumberland’s policy on how long it would keep social work records. The claimant had been arguing that he and his family had been mistreated by Social Services and wanted his records to be destroyed. (Northumberland agreed to this, but the judicial review continued on the basis of public policy rather than harm to the particular individual).
It occurs to me that in destruction of the records, one of course also destroys those bits of the records that say that the claimant was exonerated, and that might not be ideal.
The policy is specifically to retain the records for 35 years after the case is closed, unless the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the Adoption Order).
The Claimant (and also the Information Commissioner) were arguing that this policy was Wednesbury unreasonable and hence unlawful.
They instead proposed that the files be kept until the child became 24 (i.e reaches the age of 18 and then allow for six years to pass, which is the period of time in which any civil claim can be brought for say negligence or vicarious liability).
[It is always nice to see someone who is in the role of bossing others about get some criticism, no offence to the good people of the Information Commissioner’s office, but the ‘counsel of perfection’ stuff does get irksome]
- The Information Commissioner’s view about the Retention Policy has changed. In a letter dated 2 July 2012, he wrote to the Claimant expressing the view that it was likely that the Defendant’s 35 years policy was compliant with the DPA and was lawful. In his submissions to the Court (dated 5 January 2015) he indicated a revised position, which is that the 35 year Retention Policy was unlawful and that it would only be lawful under the DPA for the information to be retained by the Defendant’s legal department, and then for only 6 years after the child in question turned 18 and for the purposes of defending itself against litigation, unless on the facts of any particular case, a shorter or longer period should apply.
- Although I accept that it is open to anyone to change their mind, or even change sides, and that sometimes the change may show that a party has thought with particular care about the issue and has concluded that it was wrong in its initial view, the change in position is striking.
I do know that some LA’s have a policy like the one mooted by the Information Commissioner, others go with the 75 years for which adoption files must be kept by law, still others strike a compromise like Northumberland. The stakes in this case were high then, since if the Information Commissioner and Claimant persuaded the Court that the files should be destroyed once the child was 24, then there would be a LOT of work to be done in going through old files and destroying them.
It also occurs to me, since I have worked many years ago on cases where foster carers were prosecuted for criminal mistreatment of children that happened in the 1970s, and of course, the revelations about sexual abuse including in residential children’s homes decades ago, that we might potentially be destroying very valuable and useful evidence.
The Judge sets all of this out, very carefully
- The third purpose of maintaining records relates to matters which may become the subject of investigations or inquiries in which retained information may become important. This was a matter addressed in the Policy Report at §§4.3 and 4.11. There are several types of proceedings which might call for this type of evidence.
- First, there are public inquiries. The most important is the current Independent Inquiry into Child Sexual Abuse, headed by Justice Lowell Goddard (‘the Goddard Inquiry’), whose wide-ranging task is to investigate the failures of various institutions to protect children from abuse over the past several decades.
- The Goddard Inquiry follows several other high-profile inquiries in recent years into the abuse or exploitation of children. These include one in Rotherham, whose remit was for the years 1997-2013, and Oxford, which investigated abuse as far back as 1999. A review by Peter Wanless and Richard Wittham QC into the extent of the Home Office’s knowledge of organised child abuse covered the years 1979-1999. One of the issues which has given rise to particular public concern is the existence and sufficiency of records; and, where records are no longer available, why this may be so.
- The Defendant argued that these inquiries are of fundamental public importance, and would be severely hampered if records were deleted in accordance with the Claimant’s or Information Commissioner’s proposed policy. This was a matter taken into account by Horner J in the JR60 case at  where, accepting this element of public interest, he referred to an Inquiry into Historical Institutionalised Child Abuse in Northern Ireland for the period from 1922 to the present day.
- The second type of enquiries are police investigations. Revelations about historic child abuse and exploitation give rise to criminal investigations, most infamously in the case of Operation Yewtree, led by the Metropolitan Police. This operation investigated allegations that well-known media personalities and others had engaged in criminal sexual activity, in some cases with underage and vulnerable people. Some of the crimes took place as long ago as 1967. Records of the neglect and abuse of children may be of significant interest to criminal investigators and prosecutors many years after the events themselves; and it is plainly in the public interest that critical evidence be preserved to enable justice to be done, whether this is by corroborating a victim’s allegation or exonerating someone who is wrongly accused.
- The third area of potential relevance is internal reviews. Local Authorities may have concerns about the provision of care and wish to review its procedures in order to make improvements. This is in keeping with their general duties to safeguard children’s welfare, as supplemented by the mandatory recommendations in Chapter 2 of the March 2015 Inter-agency Guide, referred to above. Old records may also be relevant to performance reviews or disciplinary proceedings relating to one or more employees, advancing not only the protection of children, but also public confidence in social services.
The Claimant and Information Commissioner then argued that whilst it might be necessary to hold SOME documents for many years, this should be the exception rather than the norm.
- The Claimant and the Information Commissioner accepted that there might be exceptional cases where the case files would need to be retained; but submitted that this could be done by forming a prospective view of their future utility at the end of the 6 year period which they advocated. In my view this approach would involve a cumbersome and time-consuming predictive exercise, which would necessarily err on the side of retention; and the argument overlooks the importance of one of the purposes for which the information is retained: its later use in order to analyse what may be a pattern or risk which can only be identified with hindsight, see Lord Sumption at  and Baroness Hale at  in Catt (above). The possibility of considering different retention periods for different files was considered and rejected for good reason in §§4.4 and 4.18 of the Policy Report.
- One of the unusual aspects of this case is that the Claimant is not advancing a case that his own circumstances highlight a particular deficiency in the Defendant’s Retention Policy. The challenge is made at a relatively high level of abstraction when compared, for example, with the challenge in JR60 case (above). Furthermore it relates to the storage of specific personal material in relation to a confined number of people, and for a particular and identified purpose. It is a very different to the Digital Rights Ireland case (above), where the Grand Chamber of the ECJ considered the impact of Council Directive 2006/24/EC which covered the retention of all traffic data relating to all electronic communication. Its conclusion that the Directive was inconsistent with Articles 7, 8 and 52(1) of the European Charter, was hardly surprising in the light of the Court’s view at  that it entailed ‘an interference with the fundamental right view of practically the entire European Population.’
- The suggestion that the files should be reviewed every 7 years seems to me to involve a disproportionate use of labour and unproductive use of resources which are better devoted to protecting children. As Ms Brown noted, such reviews could not be carried out by anyone other than an experienced social worker, looking at the entire file and having to assess potential risks.
The Court was not of the view that the Council’s policy was unreasonable or unlawful
- As Ms Brown put it in §58 and 59 of her witness statement:
58. [The Defendant] deal[s] with a large number of cases and at any point will have approximately 3,000 children as open cases to Children’s Services …
59. The current retention policy provides for retention for a period long enough to ensure that it is improbable that information from a closed record will be of central importance in any future work to protect children. In some cases, it might in principle be possible to dispose of records after a shorter period – particularly in situations where an investigation found where an investigation has found no evidence that abuse or neglect [has] taken place – but it would be necessary to assess the risk in every case.
- I accept that evidence. As noted above, the Defendant’s investigation into the Claimant and his family found no evidence of abuse or neglect, and the records have been dealt with consistently with the Defendant’s Retention Policy by deletion.
- In the light of the above I accept the Defendant’s submissions that there is a need to keep the records for a substantial period, and certainly substantially longer than the period argued for by the Claimant and the Information Commissioner. It might be argued that the period of 35 years is not the only possible period of retention, but in my judgment it falls within the bracket of legitimate periods of retention.
- I have therefore concluded that the Defendant’s Retention Policy of 35 years is in accordance with the law, has been carefully considered, adapted to the purposes for which it is required, and is applied proportionately and flexibly.
- It follows that the claim fails.
[For clarity, this judgment does not require that a Local Authority whose policy is NOT to hold the files for 35 years would be acting unlawfully and thus need to change it, it is rather that the policy about holding documents is something which has to have rational underpinning and is capable of being defended if challenged. Northumberland’s policy is annexed to the judgment, and is a very well thought out document which is now bulletproof should others choose to make use of it. ]
Every time I type Northumberland I think it sounds like an area in Skyrim, infested with bearded dwarven blacksmiths who need me to go and find four frogs that have escaped, so that they can extract the poison and make me a really good sword.