username

password

DNA LegalHarcourt Chambersimage of 4 Paper Buildings logoHind CourtGarden Court1 Garden CourtCoram Chamberssite by Zehuti

Disclosing Information Relating To Children And Their Families

Claire Bessant discusses the impact of recent legislative amendments and cross-government guidance on the disclosure of information about children.

Claire Bessant, Principal Lecturer, Northumbria University

A number of overlapping legal provisions aim to protect people from the wrongful disclosure or use of confidential and/or personal information. The issue of when information relating to children and their families may lawfully be disclosed is particularly difficult, since it requires the competing rights of the child to be balanced with the rights of others. A child, for example, has a right to privacy under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), yet he or she also has a right to life and a right to be protected from torture and inhuman or degrading treatment (articles 2 and 3 of the Convention). It may be necessary, in order to protect a child, to disclose information about siblings or parents. These siblings and parents equally have rights to privacy. These rights must all be weighed against the public interest in preventing crime or disorder, and in protecting the health, morals, rights and freedoms of others. Parents themselves may further argue that they have a 'right to know' about their child. In this regard, see "DoH guidelines on confidentiality and underage abortion challenged" (Family Law Week, 9 November 2005) reporting that a mother was seeking the right to know if any of her underage daughters has an abortion. The mother claimed that not providing information infringed her parental rights protected by Article 8 of the Convention.

The issue of disclosure of information about children is, of course, not a new one. There seems, however, to have been a surprising flurry of activity in this area recently. Two key developments in this area are considered below.

Amendments to court rules
On 31st October 2005 the Family Proceedings (Amendment No 4) Rules 2005 and the Family Proceedings Courts (Miscellaneous Amendments) Rules 2005 came into force. These amendments will significantly lift restrictions upon the disclosure of information about family proceedings held in private. One of the aims of these amendments is to assist parties (particularly those who are represented) in obtaining advice and support from non-parties. They will also specifically address issues which have recently required consideration by the courts (see In the Matter of the Children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759 regarding disclosure of documentation to a McKenzie Friend).

A party to proceedings, may now, without court permission, communicate any information relating to proceedings, for specified purposes, to:

The term 'any information' is not defined, but could arguably be interpreted to mean all, or unlimited information about the proceedings. It would seem that by specifying the purpose for which information may be disclosed (for example, disclosure to a spouse is to be for the purpose of confidential discussions enabling the party to receive support from the spouse) it is intended that information should not be disclosed unless it is both justified for that purpose and proportionate. The sanction for providing more information than is justified is not, however, clear.

The amendments do recognise that there may be circumstances in which it is not appropriate to provide 'any' information to a non-party. A party may, for example, provide the text or summary of the whole or part of a judgment given in proceedings to an elected representative or peer, the General Medical Council, a police officer, or a member of the Crown Prosecution Service. When it will be appropriate to provide the whole of a judgment rather than a summary is not clarified. It is arguable that in many cases, Article 8 of the Convention requires parties and their legal advisors to consider carefully whether a summary, anonymised, would in fact be sufficient. If there is doubt, the court should still be called upon to clarify the position.

Outside the limits of these amendments, existing rules with regard to disclosure of court documents continue to apply. Court permission to disclose documentation will still be required if the police, for example, seek information other than the text of a judgment. In such cases, the public interest in disclosing such information will need to be considered.

Sharing Information on Children and Young People
It is hoped that new cross-government guidance "Sharing Information on Children and Young People" (upon which consultation recently concluded) will assist practitioners (outside court proceedings) in crossing the information-sharing minefield. The guidance is intended to cover all practitioners working with children, including health, education, early years and childcare, social care, youth offending, police and Connexions. It aims to provide knowledge and understanding practitioners need to inform their professional judgment of when and how to share information, and thereby to improve outcomes for children, young people and their families.

Some concerns about this guidance will need to be addressed before the guidance is published in its final form. Particular criticisms include:

The final guidance is expected in the New Year.

Discussion
The draft cross-government guidance highlights that when someone asks 'should information be shared about this child or their family?', consideration should be given to the common law duty of confidence, the Data Protection Act 1998 and the Human Rights Act 1998. Additional ethical obligations are imposed on groups of professionals such as lawyers and doctors. Conflicts and overlap between the legal and ethical obligations further complicate matters.

Where a public body employs the professional who wishes to share information they must also have explicit or implicit legal authority to share information. The power to share information does not then oblige the professional to share any information. It is one of many considerations to be addressed before a conclusion can be reached that disclosure of information is justified.

A preliminary consideration for many professionals (unless the child will be placed at increased risk) will be obtaining consent to disclosure of information. In the absence of consent, a judgment may need to be made about whether the disclosure is in 'the public interest'. The term 'public interest' (which is equally relevant to disclosure of information about court proceedings) is ill defined and often ill-understood, contributing to many problems in this area.

All of the statutory and common law provisions mentioned by the guidance sit alongside rules of court and case law relating to disclosure. The court's role is touched upon only briefly by the draft guidance, to confirm that disclosure may be authorised by the court. The guidance perhaps needs to make equally clear when information about court proceedings themselves can and cannot be disclosed without court permission. How the new amendments to the court rules sit alongside duties of confidentiality, the Data Protection Act 1998 and the Convention is another can of worms, perhaps best left un-opened.

Lord Laming highlighted in his report to the Victoria Climbie Inquiry that practitioners were unclear when to share information about a child, and feared the consequences of breaching the Data Protection 1998 and the Human Rights Act 1998. Understanding the range of provisions, and their application remains no easy matter. The Government is clearly concerned to address this issue, and the consultation document is certainly a step in the right direction. It is hoped that the amendments to the Family Proceedings Rules 1991 and to the Family Proceedings Courts (Children Act 1989) Rules 1991 will also clarify, and not add further confusion to, the issue of disclosure within the court arena.