Care Leavers above a certain age are a collective and largely invisible group who’s rights are not afforded to them as a group and whom suffer greatly from discriminations in society and legislatively.

Upon leaving care an individual is clearly more vulnerable than their peers and can remain so throughout the life course. Indeed, we work with very many care leavers for whom the residual issues of their care experience and transition to independence; often negative and unsupported follows them into their 30s, 40s, 50s, and 60s and beyond.

Often a care leaver will arrive at a stage in life when they become reflective and it is at this stage and before that their fundamental human right to access their social care files should be recognised and fully supported. This is fundamental to their emotional well-being as understanding ones past is important in moving on with ones future.

Emotional well-being is the one constant that crosses the lifespan of all of us and something which does not change across generations, whilst also being an aspect of the care experience that policy and practice has failed to understand and offer any real meaningful intervention in.

The file is a record of time in care, therefore belonging in its entirety to the care leaver yet the local authority determines access to it and the contents of it, whilst also claiming the ‘subject’ (care leaver) is not able to determine their own relationship with its contents.  This is of course very similar to the relationship the care leaver will have experienced as a ward of the state and the local authority in loco parentis.

The emotional well-being of the care leaver is not being considered here, nor are the rights of the care leaver, which runs counter to the principles inherent within the Data Protection Act 1998 (DPA `98), which is there to make access to and control over one’s personal information easier.

A recent Appeal Court judgement on Dunn v Durham County Council means that claimants and their lawyers can now have access to un-redacted files.

The judgement prevents the un-redacted records from being disclosed to anyone not connected with the legal case, more specifically lawyers and their clients. However, we have a recent case here at The CLA where un-redacted files have been granted to a solicitor, but the solicitor has a court order preventing the care leaver seeing that un-redacted file due to 3rd Party protections. The care leaver in question has been told by the said council that they will not produce a second copy of the file and have refused the ‘Subject Access Request’ as an unreasonable request under the rule of the DPA `98.

Section 35 of the DPA `98 states:-

(1)              Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

(2)              Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

(a)          for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

(b)          for the purpose of obtaining legal advice, or is otherwise necessary for the purposes      of establishing, exercising or defending legal rights.

One might argue, that should any other individual be mentioned in your file, they are mentioned within the context of your life an therefor the information in its entirety is a much yours as it is theirs and therefore you have every right to a copy of it.

The CLA argues that this judgement does nothing to afford care leavers greater access to their files should they not wish to take any form of legal action against a council or seek legal advice. This denies them their fundamental right to access their files.

The CLA also points to the discretionary powers held by local authorities being applied to hinder access to files, which is a perverse application of the DPA `98 and this is compounded by the improper use of statutory instrument 2000/415 restricting access to information in files as it ‘may do harm to the subject’.

We argue there should be a distinction between open and closed cases and this should be reflected in guidance for allowing access to files based on the status of the said case as open or closed. The CLA suggests that discretionary powers held by councils are being used to restrict access to historical files due to what is written, the way it is written and because councils fear litigation based on negligence and any references to historical abuse.

Through our extensive case work The CLA is finding that local authorities are often uncooperative in providing files, taking excessive amounts of time to provide them and redacting them heavily in some instances.

Care Leaver are therefore being left with more questions as a result and as such often accessing the files fails to address their need to engage with their identity.

This is not helped by the failure of councils to offer any level of support, failing to explain the process of redaction and in the majority of cases simply posting the files to the care leaver.

Guidance on the issue of accessing social care files is so poor that the application of the DPA `98 across the country is not uniform leaving significant gaps in provision and amounting to ineffective practice.

Access to social care files should be given recognition by local government as a body of work in its own right and not only seen as a bureaucratic exercise, but rather seen as a body of work that sits within adult social care and is afforded the accompanying support from the inception of application to the receipt of the file. The local authority as a corporate parent has a responsibility to do so.

If one went home to ones parents’ house and wanted to look through the photo album and ask questions one would have that privilege – why should care leavers not have the same privilege without the restriction of redaction, a process that is not uniformly applied and which is time consuming and as such is very expensive!!

Growing up in care for some is an experience covering their whole childhood with some people living between care placements and their own family, whilst others spend time in care for a specific period. In all these cases there are questions to be answered and it is often once one reaches adulthood, has a family of one’s own and life is somewhat settled that one begins to reflect on the past.

Curiosity; fragmented memories; photos to show your own children; reminiscing; making sense of difficult memories and life events; seeking answers about why one went into care as families often have disparate explanations; trying to trace family (redaction impedes this) and seeking medical information in reference to hereditary illness/disease are all reasons why care leaver want to access their files.

The Care Leavers’ Association, throug the campaign work ‘It’s our History, It’s Our right; Reclaiming Our Past’ seeks to:

  • Promote awareness of care leavers’ rights to access their files
  • Promote awareness of the importance of these personal records to care leavers
  • Promote best practice on accessing these vital documents amongst professionals working in this area.

We would like to re-iterate, accessing one’s social care file is a fundamental human right under the European Convention on Human Rights, Article 8; Right to Respect for Private and Family Life.

Support our campaign, write in and tell us your experiences of accessing social care files.

Write to your local MP and highlight the importance of recognising the need of care leavers to have unfettered access to their social care files.