Many care leavers were brought up in care in the voluntary sector. This may have been with, for example, Barnardo’s, NCH, The (Church of England) Children’s Society, Father Hudson’s, Nugent, etc. These charities largely withdrew from the residential care of children during the 1970s.
No statutory right of access
The charities often still keep the case records of children who were in their care. These records are maintained in archives and may not be caught by the Data Protection Act if the records are not stored on computer or organised into what is known as ‘relevant files’. This is in contrast to adults who were in care with local authorities, whose records are caught by the Data Protection Act. Therefore, a charity may refuse to grant an adult access to his or her childhood case records. However, most charities claim to operate within the spirit of the Act. Most have also allowed access to files for many decades and it has often proved easier, until recent years, to access voluntary sector files than local authority files. Thousands of care leavers have accessed their voluntary sector files.
Refusal to grant access
If you are refused access to some or all of a file kept by a charity, or you are presented with what you regard as unacceptable conditions on access (such as prior compulsory counselling), it may be possible to challenge this under Article 8 of the Human Rights Act. This is because of the Gaskin case of 1989, where the European Court of Human Rights decided against the UK government’s position that case records should remain secret from care leavers. Such an application to the courts should succeed because the UK Courts nowadays must take a human rights approach in reaching their judgements. The European Court of Human Rights has already decided that the information contained in childhood case records engages Article 8 of the Convention on Human Rights, now incorporated into UK law via the Human Rights Act. It is unlikely that a UK Court could ignore this judgement and it is one which is likely to swing the Court’s decision in the applicant’s favour.
With some charities, an offer to grant access is often accompanied by a condition that the care leaver undergoes ‘counselling’, or social work support, during access. No such condition can be placed on local authority care leavers seeking access to their file under the Data Protection Act. If you have concerns about your privacy then it is worth noting that some care leavers have experienced that personal details given over during this ‘counselling’ process has been recorded, sometimes without the care leaver’s knowledge.