I spent the whole of my minority, save for the first seven months of my life, in care with a large charitable organisation. Throughout this time I knew nothing of my mother although I had regular contact with my father. The organisation had a policy of strict secrecy and my origins and reasons for being in care were rarely, if ever, discussed. It was only at the ripe old age of 31 that I discovered my mother’s name and this came about through the opportunity of unfettered access to my birth certificate that working at the then so-called Office of Population Census and Surveys gave me!
In October 2003, I accessed my care file from The Children’s Society. At the time I had no knowledge of the Data Protection Act and its impact on ‘Gaskin-type’ information held by public authorities. I now understand the Data Protection Act and also know that the Data Protection Act does not catch my Gaskin-type information because it is held by a charity (a charity is not a public authority), unless the information is kept on computer and this is most unlikely.
Conditions of access
The Children’s Society insisted that my file could only be ‘shared’ with me in a face-to-face context with one of their social workers. (Later, I queried this requirement in correspondence and I was told in writing that, in line with the Adoption Acts, face-to-face contact was a mandatory requirement. I was also told over the telephone that records could be not released other than in a ‘counselling environment’ and that The Children’s Society had on a previous occasion declined to release an individual’s care records because that individual had declined to undergo ‘counselling’). I was also required as a condition of access to sign a form giving consent for my records to be used in research.
I duly travelled to London to take receipt of my care records. Before the social worker commenced proceedings I was obliged to say why I wanted to see my records. I was also obliged to give a verbal account of what happened to me when I left care. I then had to undergo a short lecture on how black children in care suffered more than white children. Although I accept the probable truth of this assertion, it made me feel uncomfortable as there appeared to be an inappropriate implication that I was responsible for this state of affairs which, as a disadvantaged child myself, could not be true. Throughout this preamble there was an unspoken message that access would be denied unless I exhibited compliant behaviour, which I duly did, so anxious was I to see my records.
Problems during access
Once the access process got underway, I was handed documents one-by-one following a verbal summary supplied by the social worker. I was told this was best practice. The first 150 documents or so were very boring because they pertained to maintenance payments on which my parents had defaulted. Had the Data Protection Act applied, this information would not be accessible because it was not focused on me and hence did not constitute my personal data. Moreover, I believe this information possesses a ‘quality of confidence’, which means the common law of confidentiality forbade its release to me.
As the access proceedings continued, the information became more interesting as it began to relate to my admission into care. Despite this, some of the first months of my life were unexplained. Prior to accessing my records, I had known almost nothing about my infancy. The reports about my infant development, including ‘height-weight’ charts, and my infant personality, surprised me and I now know that the height-weight charts would enable me to ascertain whether I suffered ‘Failure to Thrive’, which condition arises mostly as a consequence of maternal neglect.
About two-and-a-half years into my file, the information supplied to me became fragmented and references to mysterious items appeared ‘out of the blue’, which made it difficult for me to understand what was happening in my life at that time. Although I did not know it, the cause of this confusion was that a letter written by my father to The Children’s Society in 1956 had been withheld on the grounds that a duty of confidentiality is owed to my mother. My father eventually later succeeded in accessing his letter in his own name despite the efforts of an over-zealous social worker to frustrate my father’s access request; my father duly let me have sight of it once he had his letter in his possession. The letter succeeded in filling in some of the gaps in the first seven months of my life and enabled me to make sense of the mysterious references that appeared in my records. Furthermore, the information, after appropriate redaction, does not possess any greater ‘quality of confidence’ than my parents’ defaults on maintenance payments, which information was released to me without concern in October 2003.
Naturally enough, I feel that the social worker had made an arbitrary and patronising decision by withholding my father’s letter and had played God with my information and identity. Had the Data Protection Act applied, both my father’s letter and the details of my parents’ maintenance defaults would not have been accessible by me. In subsequent correspondence, The Children’s Society defended releasing details of my parents’ maintenance defaults by pointing out that the Durant-v-FSA 2003 case had not then been heard by the Court of Appeal and that this case had since changed the data protection landscape. Although I accept this as being true, I believe that the common law of confidentiality also forbade the release of information detailing my parents’ defaults on their maintenance payments, which also possess the ‘quality of confidence’ and so I do not accept The Children’s Society’s explanation as watertight.
Contents of my records
The main conclusion I draw from accessing my records is that I was badly let down by the care organisation. I had been placed voluntarily in care by my mother pending, ostensibly, the marriage of my parents, which never took place. The records show that no attempts were made by the care organisation to restore me to my mother, nor have me adopted. At the age of seven, my records reveal that my mother wrote to the care organisation announcing her wish to relinquish possession of me. Up to that time, the correspondence shows that her attitude had been ambivalent towards me, once referring to me almost possessively as ‘her child’, other times expressing complete indifference towards me. The care organisation’s response to my mother’s declared wish to relinquish possession of me was to release her from her obligations to make future maintenance payments so as to enhance the prospects of a successful imminent marriage to her prospective husband. I was not told about any of this and nor were any plans for my future made by the care organisation, according to my records. In short, my future was sacrificed by the care organisation on the altar of my mother’s search for happiness. I was thus consigned to spend the rest of my minority in institutional care where I grew progressively unhappier as I observed each of the other children being restored, adopted or fostered. In retrospect, I think I was ‘warehoused’ and had become ‘lost in care’. When my behaviour began to reflect my forsaken state, the records show that my behaviour, which I was not in control of, became of great concern to the care organisation, which passed moral judgment on me rather than addressing my causal distress, which itself played no small part in inducing.
Throughout this time, the housefather of the institution has been regularly administering savage corporal punishment with sufficient severity to induce screams of pain from me. Entries pertaining to my beatings from the ‘punishment book’ of the offending institution have not been released to me although they qualify as personal data and would be accessible under the Data Protection Act. It is highly unlikely that a legal claim against the care organisat
ion would succeed after this time. I was excluded from the institution shortly after my father had complained to the Head Office about the beatings. The fact of exclusion provides the care organisation with a defence against negligence, should such a case ever be presented to the Courts, because it can argue that by removing me once the beatings became known shows it was not negligent. This can be argued despite the records indicating that the housefather contrived to achieve my exclusion after the complaint of the beatings had been made, in which endeavour he was successful.
Once excluded, I was moved to another institution where, it is recorded, I got along very well with the housefather. The new housefather took an interest in me as an individual human being as distinct from viewing me as an anonymous inmate of an institution. There were also girls in the new institution, and these creatures interested me greatly having just come from a repressive all boys’ home and school, and I suppose their presence also contributed to a happier time in my new institution.
Despite the Data Protection Act not applying to the paper-based records kept by the charities, its enactment has succeeded in creating a moral climate whereby the charities feel compelled to open up their ‘confidential’ records to those who were placed in their care as children.
The Data Protection Act gives a statutory right of access to Local Authority Social Services care leavers whether the care records are paper-based or stored electronically. The Act gives effect to the Gaskin-v-UK case heard in the European Court of Human Rights in 1989 where it was decided that care records held by public authorities engage Article 8 of the European Convention on Human Rights to which the UK is a signatory. The Court held that individuals who had been in the state’s care should not be impeded from knowing and understanding their childhood and early development by the state without just cause. Access to such information (Gaskin-type information) was judged to be a means whereby individuals from care might ascertain their identities as individual human beings.
So how effective is the DPA in enabling individuals formerly in care to establish their identities? Clearly, childhood years are formative and what happens in childhood is likely to stay with an individual for the rest of his or her life. Unusual events visited on children in care are likely to have impacted adversely and significantly on their early development and adult personality. Neglect and abuse are examples that often impair normal child development and which in later life impinge upon an adult’s behaviour and sense of Self.
Both ‘access to records’ cases (Gaskin 1989 and M.G 2002) heard in the European Court of Human Rights involved cases where the complainants had been denied access to information concerning abuse suffered by them as children. On both occasions the Court upheld their rights of access because of the relevance of such information to early development and subsequent adult behaviour. Information about such events can be necessary for victims to come to terms with their traumatic and unusual childhoods and the European Court of Human Rights may have recognised this in its landmark judgment against the UK government.
Another component of an individual’s identity is origins. Individuals placed in care as babies or infants may have no memory of their parents. They will often not know what their father did for a living, what social class they were born into, what their mother looked like and a myriad of other items which are taken for granted but which contribute to the sense of Self in individuals who grew up in the family home. In this sense, many care adults are similar to adoptees who, if adopted very young, will also have no memory of their natural parents and the sense of Self that such experience and memory brings. Adoptees can now get access to information about their natural families. Not so for care adults because the Data Protection Act forbids access to the data of ‘third parties’, which term includes family members. Care leavers are legally permitted to access information about their families only to the extent that such information forms part of their own (the care leaver’s) personal data and even then this information can be withheld at the discretion of the care organisation. An example of this anomaly is that a photograph of a care leaver’s mother is not accessible under the Data Protection Act but a photograph of an adoptee’s mother is accessible under the Adoption Acts.