Children and Families Bill

Debate between Baroness Massey of Darwen and Baroness Young of Hornsey

Monday 14th October 2013 Grand Committee

[Baroness Young of Hornsey (CB)]

My Lords, I start by declaring an interest as someone who has had direct experience of the childcare system and of accessing social services care records.

This amendment is informed by the experience of care leavers and by professionals in the Access to Records campaign group, which comprises, among others, the Care Leavers’ Association, the British Association for Adoption and Fostering, the Association of Child Abuse Lawyers, the Childcare History Network, the Post Care Forum and Barnardo’s and is also supported by the charity TACT.

Whether they have spent all or part of their childhood and/or adolescence in the care system, for too many the current system simply is not working in a consistent, helpful way. At the moment, care leavers apply under the Data Protection Act for access to personal information held in care records, but unfortunately the DPA is often misinterpreted by local authorities, with some organisations severely restricting the information made available. There are too many examples of care leavers receiving such incomplete and heavily redacted records that their case histories are rendered virtually meaningless. Furthermore, the service given by local authorities is erratic and inconsistent: some are enabling and supportive while others are bureaucratic and obstructive. Some seem so concerned about negligence claims and media headlines that their position is defensive from the very beginning.

The relationship between practice and legislation was brought up in discussion on the previous amendment, and it is key here, too. Our argument is that, although there are regulations and guidelines in place, they are not working sufficiently well. Before I go into the detail of the amendment, I want to say something about the rationale behind it.

Many of the points made by the noble Baroness, Lady Hamwee, last week in relation to Amendment 25 resonated with me, because very similar issues concerning identity, belonging and knowledge of family history are relevant to this amendment. The question, “Who am I?”, is fundamental; it is a question necessary for us to recognise our sense of self and our status as a distinctive and unique human being. We understand that responses to that question are highly complex: we are the sum of our experiences and memories, and of what other people tell us and how they respond to us. Some experiences are indelible and remain with us through memory; some experiences, even though they are an essential part of our experience of the world, may none the less be forgotten, especially if they have produced trauma of one kind or another.

If you have been brought up in care, you come to think about what kind of person you are and where you have come from, asking, “Who am I?”. However, these questions may be unanswerable. Who is there to tell you at what age you accomplished something or about a specific difficulty you had, or the circumstances of your early life? How is it possible to accumulate the kind of knowledge about yourself that people brought up in conventionally caring situations take for granted? It may be your story and your journey but it seems to belong to the state in the form of records, whether they are hand-written, type-written or whatever.

Several thousand people ask to see their records and many of these requests come from people in their middle or later years. The lifelong needs of adult care leavers are at least as pressing as those of adults who have been adopted, although this is rarely recognised in respect of access to care records and the aftermath. The DPA enables care leavers to see personal information about them on their care files. The problem is that when asking a local authority to see these files, care leavers’ experiences range from a response which is at best enabling and supportive and at worst bureaucratic, restrictive and inconsistent with the corporate parenting role. There are some examples of good practice but we want the Government to ensure that local authorities work with the Information Commissioner’s Office to enable care leavers to have all the personal information they are entitled to, and to exercise their discretion regarding third-party information in a less restrictive way.

As I have suggested, despite the requirements already in place, we think that the standard and quality of case-record keeping is not consistent across the children’s services sector. Organisations need to be mindful of keeping older records safely and under secure conditions, whether they are paper, scanned or microfilmed. We have heard too many instances where organisations with poor archival records and retrieval systems respond to the care leaver’s request for personal information with a statement that the files or records cannot be found, without any sense of the profound impact that that can have on the post-care adult. Without support, the persistence necessary to obtain care files places a substantial psychological and emotional burden on the individual, who may already be very isolated. Even if they are not isolated, the impact of disturbing revelations can have repercussions on current relationships and families.

We also need to make sure that we can track where records have moved to: for example, a children’s home might have been closed or a voluntary organisation wound up or absorbed into another organisation. Not being able to find records on that basis is also frustrating and works against care leavers. Regulations could provide a framework for the coherent transfer of care records systems across childcare service providers.

Our evidence suggests that the response from the authorities is often not focused on the rights and needs of the individual care leaver. Again, this echoes other points that have been made in respect of children. Although we are clearly talking here about adults, they still have rights and needs as care leavers that are not being respected by the rather defensive attitudes often displayed by local authorities, which seem to be worried about potential criticism or fearful of litigation.

Similarly, when it comes to sensitive personal data, care leavers can find that many data controllers interpret existing provisions narrowly and that the information withheld significantly reduces clarity about the information they want to access. There are circumstances where organisations can withhold information, and there are plenty of guidelines on that. However, again we come to this point: they are not being implemented consistently or necessarily in the best interests of the adult care leaver who is seeking to find out more about their past, particularly when it comes to relatives. Even if somebody gets hold of their care records, there is then the issue of whether they understand how and why the data controller has made decisions about what information is provided and about what has been withheld, redacted or left out. In relation to that, there is also the need for adult care leavers to at least be offered the opportunity to have some kind of support in going through what is often a difficult situation to navigate.

We understand that some data controllers feel nervous about making disclosures of a sensitive nature that particularly affect other people’s personal backgrounds—for example, a mother or father or other relative—and we want to make sure that data controllers have adequate protection in such circumstances, hence the latter part of the amendment. To summarise, care leavers seek information about their past for all kinds of reasons. It may be that they are starting a new relationship or becoming a family, or perhaps they have been bereaved.

I should like to give a flavour of the experiences of some adult care leavers who have been in touch with, particularly, the Care Leavers’ Association. In one instance, a care leaver—let us call him Arthur—wanted to connect with his records because he was coming to a new phase in his life. He was told that he had come into care because his mother was admitted to hospital but he was not told why. It was considered that the reason for her admission was private and that he had no right to know. It turned out that his mother had suffered from a long-term, severe mental illness.

A second example is of a social worker who took a boxful of records, unsorted, and handed them over to someone on their doorstep and went away again. So there was no support or help through that difficult situation at all.

Another care leaver said:

“I am now at the stage in my search of having applied to Council X three times, Council Y once … Council Z and Council Q as well as making numerous Freedom of Information requests about the children’s homes and other institutions I was kept in as a child”.

Again, the implication of this is that if your own family and children ask you, “What was it like? Where are the photographs of you? What was your family like?”, and you do not have that information, having to persistently knock on the door can be very debilitating.

The Care Leavers’ Association says:

“Care Leavers above a certain age are … a largely invisible group whose rights and needs to access basic information about their family background and childhoods are continually being denied. This discrimination needs to be addressed to ensure that they can access crucial information that may profoundly affect the decisions they make in life. Care leavers’ fundamental human right to access their social care files should be recognised in legislation and fully supported so that they can make sense of their past and go forward into the future”.

I beg to move.

[Baroness Massey of Darwen]

My Lords, I strongly support the amendment of the noble Baroness, Lady Young. This is a very important issue. I applaud her efforts in challenging the current problems for care leavers in accessing their records and I respect her poignant experiences and her descriptions of the loss of identity, the “Who am I?” and the journey.

The treatment of care leavers can be about blatant discrimination and defensive responses. I have been told by two people how much distress and frustration this has caused them. As the noble Baroness said—I want to underline some of these matters—there are many forms of such discrimination. Those that I have heard of relate to organisations which have poor information, or have a reluctance to seek out information and respond that the records cannot be found—that they have lost the records. In one case, I heard that records had been moved. As the noble Baroness said, children’s homes close and organisations merge. Where do these records go? How does the care leaver find them? What help is there for them to find them?

Some local authorities or voluntary organisations become defensive or evasive, despite the fact that a care leaver has the right to access personal information. The request for information may also involve another person who has to give permission, although it may be deemed possible to give the information without permission, but some organisations which control those data may interpret the rules very narrowly. I know of one person who is still trying to access information after a year of trying. Redaction of records may occur, as the noble Baroness said. In this case, surely local authorities and voluntary organisations should provide explanations and offer counselling and support to those who receive their care records.

There needs to be flexibility about who can provide the information. People change residence. It should be possible for another local authority or voluntary organisation near where the care leaver lives to provide information and support the care leaver. People who have been in care may be desperate to access information about their life—just as those who have been adopted may wish to access records. To remove part of someone’s life history is surely cruel and unnecessary. I look forward to the Minister’s response.