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Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2005

Volume 670: debated on Thursday 3 March 2005

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6.51 p.m.

rose to move, That the draft order laid before the House on 26 January be approved [8th Report from the Joint Committee].

The noble Lord said: My Lords, I hope not to detain the House for very long. The Children and Family Court Advisory and Support Service (CAFCASS) has requested an amendment to the Data Protection (Subject Access Modification) (Social Work) Order 2000. The purpose of the amendment is to ensure that CAFCASS officers, in all their roles, are exempted from having to disclose personal data to the data subject where they consider that it would be likely to cause serious physical or mental harm to either the data subject or any third party. We agree that the amendment requested is both necessary and—just as importantly—proportionate.

The Data Protection Act 1998 gave individuals a number of rights; one of those is the right of subject access. It is the right of individuals to be told by a data controller—in this case, a CAFCASS officer—whether he or she is processing information about them and, if so, to be given a copy of that information. The individual must also be told about the process, the purposes for which the data are being processed and those to whom the data may be disclosed.

The data controller—again, in this case, a CAFCASS officer—can refuse to disclose personal data that it holds on a data subject only if an order—in this case, a social work one—exempts them from having to do so. The basis for the exemption is that, if the personal data were given to the individual in question, it would be likely to prejudice the carrying out of social work by causing serious physical or mental harm either to the data subject or to a third party.

The Act has allowed for a number of orders which provide exemptions from the subject access obligation; for example, the health order. The Data Protection (Subject Access Modification) (Social Work) Order 2000 is one of those.

Noble Lords will probably know exactly what CAFCASS is. Its sponsoring department is the DfES, and it looks after the interests of children involved in family proceedings. It works with children and their families and then advises the courts on what it considers to be in the children's best interests. Matters in which CAFCASS may become involved include: when parents are separating or divorcing and cannot agree on the arrangements for their children; in the case of an adoption application; or when children are subject to an application for care or supervision proceedings by social services. The functions of CAFCASS officers are: to safeguard and promote the welfare of the child; to give advice to the court about any application made to it in such proceedings; to make provisions for children to be represented in such proceedings; and to provide information, advice and support for children and their families.

The existing social work order currently excludes some of the roles that CAFCASS plays from the requirement to disclose personal data. Specifically, there are two roles that are not covered at present. The first is that of children and family reporters, who become involved when parents who are divorcing and separating are not able to reach agreement about arrangements for their children in private law cases. They will write a report to the court with a recommendation.

The second case involves guardians ad litem when the court will appoint a guardian if it considers it in the best interests of the child to be made party to the proceedings in private law cases. The purpose of the guardian is to provide separate representation for the rights and interests of the child.

The order also extends to cover the general functions of CAFCASS under the Criminal Justice and Court Services Act 2000, the key sections being Sections 12(1) and (2) and 13(1), (2) and (4), where there are court proceedings in which the welfare of children is or may be in question. The general functions include safeguarding and promoting the children's welfare, giving advice to a court about the application made to it in such proceedings, making provision for children to be represented in such proceedings and providing advice, information and other support for the children and their families.

All CAFCASS officers are involved in carrying out broadly the same type of activities as the other bodies set out in Schedule 1 of the 2000 order, such as the probation hoard and social services. For example, CAFCASS officers have to make assessments about attachment issues and the ability of parents to meet the needs of their children.

They are also involved in risk assessment in relation to the welfare of children. However, not all of the roles played by CAFCASS officers were included in the original order. CAFCASS practitioners broadly share the same social work qualifications. Therefore, extending the exemption to cover all the roles played by CAFCASS officers is a sensible reflection of the policy intention that was held at the time of the drafting of the social work order 2000.

The amendment is necessary to enable CAFCASS officers to refuse individuals access to their personal data if they consider the release of that data would be likely to cause serious physical or mental harm to either the data subject or a third party. Serious physical harm includes harm to a child, harm to self and harm to a CAFCASS officer.

It is essential that that exemption is used only when necessary. CAFCASS estimates that the exemption would not be relied on in more than 10 private cases of law a year. Even when the exemption has been relied on, it may often mean that only certain sensitive paragraphs of documents need to be read out, rather than the whole document being withheld. CAFCASS is committed to transparency whenever possible.

I am briefed to give examples of the kinds of cases when that might happen because they are unusual and extreme, but I doubt whether that is necessary for your Lordships.

The terms of the order make it clear that personal data will be withheld from the data subject only in very specific circumstances, as described by the order. If those circumstances do not arise, CAFCASS will comply wholly with the data protection laws. I beg to move. Moved, That the draft order laid before the House on 26 January be approved [8th Report from the Joint Committee].—(Lord Triesman.)

My Lords, the House is grateful to the Minister for his clear explanation of the order. I am sure that like me, he believes in the principle of open access to information, as laid down in the Data Protection Act. and that all his instincts are to react against such an order, which restricts access to such information. None of us believes that we should be living in the world of "big brother".

That is not to say that I oppose the order. I do not. I appreciate its logic, but if we are to define circumstances in which information held by the public authorities may be deliberately withheld from a data subject, those circumstances should be both rare and tightly drawn.

I have some questions for the Minister. Do I understand correctly that if a CAFCASS officer had concerns about causing harm to the data subject or to a third party if he were to comply with a request to disclose certain data, those concerns would not be a reason to withhold other data which might not be so sensitive? In that event, to what extent would the data subject be informed that he was receiving only an edited version of his file?

Am I correct that the fact of a CAFCASS officer having processed data about a person, and the factual background information as to who is entitled to see such data should remain unrestricted, even when the data themselves are being withheld? In other words, is the effect of this order simply to permit the nondisclosure of certain data, or to permit, in addition, the non-disclosure of the fact that the data are held on file? If someone were to apply to see data relating to him and the request is declined on the grounds that the Minister spoke of, should he be told that this is what is happening?

The Explanatory Notes speak of circumstances in which the exercise of Data Protection Act rights of access:
"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 any other person".
I understand the terms "physical or mental health" but I wonder whether the Minister could say what meaning the word "condition" has in this context. It is unclear to me.

In my parliamentary work, I deal with many letters from individuals who maintain that they have been falsely accused of harming their children. Very often, the nature of the alleged abuse is not physical, but emotional or mental. A social worker or teacher may have observed a child behaving oddly, disruptively or with a lack of normal concentration or self-control. Before anyone knows what has happened, those observations translate themselves into allegations of abusive parenting, and other more probable explanations, such as Asperger's syndrome or autism, are not even considered.

There is a range of hard-to-diagnose conditions in children—autism, ADHD, ME and others—which, to the untrained eye, are open to misinterpretation that can be highly damaging. The parents may well be completely innocent of any fault or wrongdoing, yet they have the finger pointed at them. I have seen and dealt with many such cases. Indeed, there are some local education authorities that will strain every sinew and muscle to avoid the expense of making special educational provision for SEN children, even in the face of irrefutable professional diagnoses, and sometimes despite formal statementing. Instead, what do they do? They put the child on the "at risk" register and accuse the parents of neglecting or harming the children. Of course. the family are then on the back foot.

It is a sinister and deeply unpleasant ploy, but it is by no means a rare one. Not infrequently, the parents who appeal to me have experienced the trauma of child protection proceedings in the family court and sometimes have seen their children taken into care. Because of the confidential nature of the family courts, they are unable to discuss the details of their case with third parties; I always have to tell them that they are acting illegally by speaking to me. There is often, in any case, very little that I can do, but one of the things I tell people that they can do is to seek access to the data that are held about them or their children by a local authority. The secrecy of the family courts is serious enough—and I believe that it is high time that we review the whole family court system—but if, following this order, data held on the files of accused parents becomes secret as well, we are potentially moving from the world of CAFCASS into the world of Kafka, unless there are very strict safeguards as to the circumstances when non-disclosure is permissible.

If the provisions of the order are invoked in a particular case, who decides whether the circumstances are sufficiently serious to warrant non-disclosure? Will such a decision hang upon the opinion of one individual, or will it require more than one person to sanction it? What evidence is likely to be seen as sufficient to warrant the view that the carrying out of social work is likely to be prejudiced if the information is disclosed? What requirement is there to record such a decision, and the reasons for it, on the file, and how are such decisions audited? What right of appeal does someone have to the non-disclosure of data, if he becomes aware of it? Could the local government ombudsman, for example, look freely into the matter?

The family court makes its determination on the balance of probabilities, and not uncommonly its decisions turn on the subjective opinion of one or two witnesses—perhaps a social worker or CAFCASS officer. The Minister will see where my remarks are leading: I do not want to see justice being denied to families under a cloak of legally-sanctioned secrecy. The statements of a CAFCASS officer cannot be challenged if the factual basis of such statements is not disclosed to the individual or to the court. Flimsy suspicion and subjective apprehensions are no basis on which to inhibit openness and rights of access. I hope that the Minister can reassure me that the perfectly right and proper wish of CAFCASS to protect individuals in hard cases and in special circumstances will not be allowed to spill over into a generalised drift towards greater secrecy and diminished accountability in the absence of compelling reasons.

My Lords, there is nothing I could usefully add to the searching comments and questions of the noble Earl, Lord Howe. Like him, we do not object to this order.

My Lords, I am grateful for the questions that the noble Earl, Lord Howe, has asked, and I fully respect that they have been repeated briefly by the noble Lord, Lord Goodhart. They go to the heart of the philosophy of the matter, and I had best start there.

I wholly share the view that we are aiming at the most transparent system possible. We would certainly want to ensure that everybody who was concerned for the well-being of children, or for the well-being of their own good name, should have the greatest possible access to the greatest possible amount of information. There would not be, in any sense, a desire to weaken the rights that I have just described and that I think are philosophically shared between all three of us who have taken part in this very brief debate.

I will say a little about the key issues that the noble Earl has raised. First, as I said in my introduction, we anticipate that approximately 6 per cent of all of the cases—about 10 cases per year—might have an element that falls into this category. It is a small number, and so the possibility of a wide-reaching use of any provision to hide information would not occur. It would be a small number of cases. Secondly, whether rare or not, it should be subject to stern tests.

That point is well taken, and I want to deal with it in the following way. First, non-sensitive data, which will be the bulk of the data, will be shared. Secondly, the data subject would be made aware that certain information had been withheld. There would be no question of them not knowing that information had been withheld. Thirdly, it is entirely conceivable that someone would take exception to even that fact, and not necessarily accept the view that it is being withheld for a good reason—namely the mental or physical harm potential of it being disclosed. For those reasons, there is a special appeal system, and for the record I would like to set out what it involves.

If the data subject wishes to appeal the decision of the data controller, in this case a CAFCASS officer, then they are able to do so under Section (7)(9) of the Data Protection Act, by making an application to a court. Ahead of this occurring, an individual going to court, for example, is first likely to appeal to CAFCASS. CAFCASS has indicated that it has reached an agreement with the board to put in place an independent review procedure to deal with such appeals. The individual also has the option of appealing to the Information Commissioner, who is the "ombudsman" of key resort in such cases. At present there are two and, as CAFCASS develops its procedures, three lines of appeal. Individuals will know that they are entitled to take any of those courses of action.

The noble Earl, Lord Howe, also asked about the meaning of "condition". Its inclusion means that there does not have to be prejudice within the meaning of recognised mental health illnesses. Severe distress would be enough in this case.

My final and, I think, fourth point is that it is right that within CAFCASS there is some means of judging whether it is proceeding sensibly and consistently, so that we know at the end of the day how many cases have gone through any particular route and with what consequences. Otherwise we would be acting without sufficient information. CAFCASS is aware and has generally said that it needs to improve the quality and reliability of its statistics. But in this case, as it will be as transparent as possible about disclosure except in these cases, its policy will lead to the collection and tabulation of robust and reliable data so that we all know that the first three processes I mentioned have come through in the way that they should.

I hope that I have been able to address the burden of the questions that have very correctly been asked of us, precisely because we want to protect transparency. When I looked at the kinds of extreme case—which I shall not list although I have offered to—where this may be a useful provision, I was satisfied that these would be cases where the risks justified taking this step. Otherwise I would not have dreamt of making this submission.

I believe that the original intention of the order was to afford protection to all bodies that perform social work. In that light and having given answers which I hope will satisfy noble Lords, I commend the order to the House.

On Question, Motion agreed to.

House adjourned at thirteen minutes after seven o'clock.