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“We’d like to know a little bit about you for our files” :- How long can Social Services hold onto records ?

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

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2134.html

 

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]

 

  1. 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.
  2. 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 believe that the expression is 'reverse ferret'

I believe that the expression is ‘reverse ferret’

 

 

 

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

  1. 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.
  2. 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.
  3. 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.
  4. 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 [20] 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.
  5. 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.
  6. 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.

 

  1. 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 [31] and Baroness Hale at [54] 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.
  2. 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 [56] that it entailed ‘an interference with the fundamental right view of practically the entire European Population.’
  3. 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[3], 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

 

  1. 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.

  2. 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.
  3. 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.
  4. 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.
  5. 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.

 

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Not being allowed to see an expert report

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    2. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.