R (on the application of C) v Northumberland CC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWHC 2134 (Admin) |
| Date | 23 July 2015 |
| Docket Number | Case No: CO/2533/2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 2134 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Judgment delivered at the Central Criminal Court
Mr Justice Simon
Case No: CO/2533/2014
and
Mr Paul Greatorex (instructed under the Bar Public Access Scheme) for the Claimant
Ms Karen Steyn QC and Mr Justin Gray (instructed by The Legal Services Unit) for the Defendant
Mr Robin Hopkins (instructed by The Information Commissioner's Office) for the Interested Party
Hearing date: 18 June 2015
Introduction
The issue before the Court is whether it is lawful for the Defendant to have a policy of retaining child protection records for a period of 35 years after a case has been closed. The Defendant contends that it is; the Claimant and the Information Commissioner, as an Interested Party, contend that it is not.
The policy in question is set out in tabular form and covers:
Child protection: investigations under section 47 of the Children Act 1989, child protection conference minutes, child protection plans and associated case recording.
The policy is specifically to retain the records for 35 years after the case is closed, unless the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the Adoption Order).
In child protection cases, the period starts from 'case closure', and the stated justification is expressed to be 'Executive Director's Delegated Decision, December 2014'.
The history of the action
The Judicial Review claim was issued in June 2014 on behalf of members of the Claimant's family and, by way of relief, sought the destruction of child protection information held by the Defendant, an order quashing the Defendant's policy and/or a declaration that it is unlawful. The Claimant felt that he and his family had been the subject of a significant injustice in their dealings with the Defendant, and that the Defendant held material about them as a result. He wanted all the data relating to the case to be destroyed. The Defendant agreed to this, and the particular facts of the Claimant's case (however painful they are to him and his family) are no longer relevant to the broader issue of principle which now arises.
In late November 2014, and in specific response to the claim, Stephen Corlett (a senior manager in a joint organisational unit of the Defendant and Northumbria Healthcare Foundation NHS Trust) was asked to advise the Defendant on the period for which records in child protection cases should be kept. Having consulted a number of identified individuals, he produced a report headed 'Retention Period for Child Protection Records' ('the Policy Report'). It is common ground that this is to be read as part of the Retention Policy. I have set out most of the material parts of the Policy Report as an annex to this judgment, and will refer to some of its provisions. It is clear from Mr Corlett's evidence that in preparing the Policy Report he had in mind the potential conflict between two important principles: minimizing intrusion into people's private lives and ensuring the safety of children (see §4.2 of the Policy Report). At §9 of his witness statement he observed:
A balance needs to be struck between these two considerations. It would be highly desirable for that balance to be arrived at nationally, with an opportunity for full public debate about the conflicting expectations placed on local authorities and other agencies, but no authoritative national guidance for social services authorities addressing this issue has to date been produced.
In a recorded decision, dated 22 December 2014, the Defendant's Executive Director accepted the recommendations in the Policy Report for the reasons given within it.
The Defendant also produced witness statements from Stephen Day, its Safeguarding Standards Manager and Principal Social Worker, and from Fiona Brown, one of its Senior Children's Services Managers. These provide further background information and the context in which the issues raised in the case can be considered.
It is convenient to record two points at this stage. First, although the Claimant relies on principles which are founded on the Common law, Article 8 of the Human Rights Act 1998 ('the HRA') and the Data Protection Act 1998 ('the DPA'), it is common ground that the requirements of each source of law is materially the same 1. Secondly, the parties are also agreed that it is for the Defendant to show that its Retention Policy is justified. Thus, although the Claimant and the Information Commissioner have argued that a retention period of longer than 6 years cannot be justified, they remind the Court that it is not for them to justify their argument as to what retention period would be lawful. Subject to this qualification, the Claimant's proposed policy was that information should be retained for 6 years after the child in question turned 18, unless the child (ex-child) requested earlier destruction or retention, or the Defendant was able to demonstrate a specific and material reason for its retention. I shall come to the Information Commissioner's proposed policy later in this judgment.
The present lack of authoritative national guidance or uniformity among local authorities is clear from the appendix to the Policy Report, which shows a wide variation of retention periods. Among those consulted, Devon has a policy which limited retention to the period up to the subject's 21st year, while Cambridgeshire, Newcastle, Norfolk, Staffordshire and Swindon have a retention period which lasted to a period of 75 years from date of birth. Somerset has a retention period of 6 years from 18th birthday (a policy similar to that advocated by the Claimant and Information Commissioner); and Liverpool, the London Borough of Richmond, Sunderland and Thurrock have a period of retention of 35 years from case closure (the same, or similar, to the Defendant's Retention Policy).
The statutory regime for child protection
This too was largely common ground.
Section 47 of the Children Act 1989 requires and authorises the gathering of child protection information. Thus:
(1) Where a local authority …
…
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm …
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.
…
(7) If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall -
(a) consider whether it would be appropriate to review the case at a later date; and
(b) if they decide that it would be, determine the date on which that review is to begin.
(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
Although section 47 authorises the making of enquiries and (at least implicitly) the retention of material collected in the course of those enquiries there is no specific statutory provision authorising a local authority to retain information.
The arguments of the Parties
The Claimant
Mr Greatorex submitted that the protection of human autonomy and dignity was an important aspect of protection of rights under Article 8(1); and that justifications by the state for the retention of information must be scrutinized with care; see the decision of the ECtHR in S and Marper v UK (2009) EHRR 50 at [102]-[104] and of the CJEU in Digital Rights Ireland Ltd v. Communications Minister [2015] QB 127at [48]. The scrutiny should be particularly careful where it involves the whole-scale retention of highly sensitive information for a long time and where it concerns child protection data relating to physical or mental health or condition, see s.2(e) of the DPA and S and Marper (above) at [124].
He criticized the reasoning in the Policy Report in a number of respects: for example, the failure to set out how it was going to filter information passed on to other organizations, as envisaged in §4.16. However, the claim for which permission to bring Judicial Review proceedings was given was not directed to the detail of the Policy Report but to the Retention Policy of 35 years. In any event, it seems to me that Ms Steyn QC is correct in her submission that a close textual analysis of the Policy Report, as if it had the status of a statute, was unlikely to yield significant insights.
Nevertheless, it is clear from §§4.18–4.20 of the Policy Report that Mr Corlett considered the option of setting separate retention dates for each case or reviewing each file at regular intervals to decide whether there was any continuing need for retention, and rejected those options: on the basis of the administrative burden that this would create, and due to the difficulty in forming reliable predictive judgments about the future.
The Interested Party
The Information Commissioner was given leave to intervene on the basis that he was likely (through his expertise) to be able to assist...
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