Is counselling a legal requirement during records access?
Local authorities cannot insist on counselling. They must supply you with a copy of your records, even if you decline to be counselled. The position of the voluntary agencies is less clear. For example, The Children’s Society says it is not obliged to grant access to records unless within a ‘counselling’ environment. However, a voluntary agency’s refusal to grant you access is likely to be overturned by the High Court in Judicial Review proceedings under Article 8 of the Human Rights Act.
Why do some agencies insist on counselling?
Often care leavers are told that counselling is for their benefit. Some care leavers do benefit from ‘counselling’. However, benefits also go to the agencies. Let us explain. All organisations owe a ‘duty of care’ to the public. Voluntary agencies that ‘looked after’ children are no different. Duty of care is a legal concept. It imposes a legal obligation on agencies to protect third parties (for example, other family members) and yourself from harm. If an agency breaches this duty, those who were harmed may sue for damages. An agency may also be criminally negligent if it breaches its duty of care.
So how do counselling and the duty of care fit together?
Care files may contain details of neglect, abandonment and abuse. Agencies may have concerns that discovery of these details could lead to negative consequences, such as causing you to seek revenge on those who harmed you. In face-to-face counselling, the agency will monitor and may record your reaction to these discoveries. If you express extreme distress, or an intention to seek revenge on a parent or third party, then the agency may take further action. In the former case, this could include involving mental health services. In the latter case, this could include involving the relevant police force (you may not know that this has been done). By doing this, the agency can say it has taken necessary and sufficient steps to protect third parties from harm. In law, the agency will have complied with its duty of care and cannot be sued if the third parties suffer harm.
Some agencies promote ‘counselling’ as a form of good practice, offering adult care leavers helpful advice during a sometimes difficult process. Some care leavers have experienced this to be the case. However, if you attend counselling be aware that this may not be its sole purpose. For the reasons given above, you may wish to refrain from answering any personal and private questions and from discussing your life in care, since leaving care and your current circumstances. Many agencies also offer post-access support. Some care leavers have found this helpful. However, other care leavers have found that this process has not been private.
Finally, be aware that you do not need to sign an agency’s consent form for your data to be processed for the purpose of records access. You should therefore seek to clarify the purpose of such a form from the point of view othe agency and the implications with regards to the information it supplies and what it does with it. Withholding your consent limits the agency to processing data relating to its duty of care and details that prove your identity.