CASE OF GASKIN v. THE UNITED KINGDOM
Violation of Art. 8;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
C. Russo;J.A. Carrillo Salcedo;N. Valticos
10. The applicant is a British citizen and was born on 2 December 1959. Following the death of his mother, he was received into care by the Liverpool City Council under section 1 of the Children Act 1948 ("the 1948 Act") on 1 September 1960. Save for five periods varying between one week and five months when he was discharged to the care of his father, the applicant remained in voluntary care until 18 June 1974. On that date the applicant appeared before the Liverpool Juvenile Court and pleaded guilty to a number of offences including burglary and theft. The court made a care order in respect of him under section 7 of the Children and Young Persons Act 1969. The applicant ceased to be in the care of the Liverpool City Council on attaining the age of majority (18) on 2 December 1977. During the major part of the period while he was in care the applicant was boarded out with various foster parents, subject to the provisions of the Boarding-Out of Children Regulations 1955 ("the 1955 Regulations"). Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care (see paragraph 13 below). 11. The applicant contends that he was ill-treated in care, and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past. 12. On 9 October 1978, the applicant was permitted by a social worker in the employment of the Liverpool City Council to see the case records relating to him kept by the Social Services Department of the Council in accordance with its statutory duty. He removed those records without the Council’s consent, retaining them in his possession until he returned them to the Social Services Department on 12 October 1978. 13. It is the practice of the local authorities to keep a case record in respect of every child in care. In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of the 1955 Regulations, which were made under section 14 of the 1948 Act. Regulation 10 of the 1955 Regulations, so far as relevant, provides that: "10.-(1) A local authority shall compile a case record in respect of - (a) every child boarded out by them; (b) ... (c) ... and the said records shall be kept up-to-date. (2) ... (3) Every case record compiled under this Regulation or a microfilm recording thereof shall be preserved for at least three years after the child to whom it relates has attained the age of eighteen years or has died before attaining that age, and such microfilm recording or, where there is none, such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of State." 14. In 1979 the applicant, wishing to bring proceedings against the local authority for damages for negligence, made an application under section 31 of the Administration of Justice Act 1970 ("the 1970 Act") for discovery of the local authority’s case records made during his period in care. Section 31 of the 1970 Act provides, inter alia, that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries. 15. The application was heard by the High Court on 22 February 1980. The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest. The principal contributors to those case records were medical practitioners, school teachers, police and probation officers, social workers, health visitors, foster parents and residential school staff. Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible. If discovery were ordered, the public interest in the proper operation of the child-care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future. 16. The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery, for the purpose of his proposed proceedings for personal injuries against the local authority. He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available. 17. The judge did not read the records in question, but balanced the public interest in maintaining an efficient child-care system with the applicant’s private interest in receiving access to his case records for the purpose of the proposed litigation. After referring to the case of Re D (infants) [1970] 1 Weekly Law Reports ("WLR") 599, in which Lord Denning, Master of the Rolls, held that case records compiled pursuant to Regulation 10 of the 1955 Regulations were regarded as private and confidential, he concluded: "I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow. I have no doubt that the public interest will be better served by refusing discovery and this I do." 18. The applicant appealed from this decision to the Court of Appeal. On 27 June 1980 the Court of Appeal unanimously dismissed the appeal. In the Court of Appeal’s view, the High Court, in its judgment, had correctly balanced the competing interests. It added that the inspection of a document is a course which it is proper for a court to take in certain cases, for example where grave doubt arises and the court cannot properly decide upon which side the balance of public and private interests falls without itself inspecting the documents. However, this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents. The High Court’s decision was accordingly affirmed and leave to appeal to the House of Lords was refused (Gaskin v. Liverpool City Council [1980] 1 WLR 1549). 19. On 21 October 1980, Liverpool City Council set up the Child Care Records Sub-Committee ("the Sub-Committee") to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant. 20. On 17 June 1982, the Sub-Committee recommended making available case records to ex-clients of the social services, subject to certain safeguards and restrictions relating in particular to medical and police information. As to the applicant, the Sub-Committee viewed with concern the number of placements which he had while in care, and which they recognised could be detrimental to a young person’s development, but found no evidence to suggest that "the officers carried out their duties in other than a caring manner". The applicant was to be allowed access to, and to make photocopies of, his case records, subject however to the exclusion of medical and police information. 21. On 30 June 1982, the Sub-Committee’s recommendations, subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed, were embodied in a resolution of the Social Services Committee. However, Mr Lea, a dissenting member of the Sub-Committee, brought an action challenging the resolution and obtained an interlocutory court order preventing the City Council from implementing it until the trial of the action or until further order. 22. On 26 January 1983, Liverpool City Council passed a further resolution. As regards future records this reiterated the general terms of the resolution of 30 June 1982 and added certain further restrictions to protect information given in confidence and to provide for the non-disclosure of the whole or part of the personal record in particular cases, but as regards information obtained and compiled before 1 March 1983 it was resolved that this should be disclosed only with the consent of the suppliers thereof. Pursuant to this policy the resolution went on to instruct the Council’s officers to contact the various suppliers of information to the Gaskin file immediately with a view to disclosure. The local authority’s officers were, however, ordered not to implement this resolution pending the outcome of the legal action brought by Mr Lea. This action was discontinued on 13 May 1983 and on 29 June the local authority confirmed a further resolution to the effect that the resolution of 26 January would be implemented as from 1 September 1983. 23. On 24 August 1983 the Department of Health and Social Security issued Circular LAC (Local Authority Circular) (83) 14 to local authorities and health authorities pursuant to section 7 of the Local Authority Social Services Act 1970 setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records. The general policy laid down in paragraph 3 of the circular was that persons receiving personal social services should, subject to adequate safeguards, be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto. Paragraph 5 set out under five headings the reasons for withholding information. These included the protection of third parties who contributed information in confidence, protecting sources of information, and protecting social service department staff’s confidential judgments. Paragraphs 6 to 9 set out in more specific terms the policy governing client access to case records. Paragraph 7 in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access, the most relevant for the purposes of the present case being that "information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party". However, it was then provided in paragraph 9 that since existing records had been compiled on the basis that their contents would never be disclosed, material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information. 24. On 31 August 1983, the High Court granted the Attorney General leave to apply for judicial review of the resolution of 26 January 1983 as amended by that of 29 June 1983 on the ground that it went beyond what were considered to be the proper limits and, in particular, omitted certain important safeguards which were contained in Circular LAC (83) 14. Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of 26 January 1983. 25. On 9 November 1983, Liverpool City Council confirmed a further resolution of its Social Services Committee of 18 October 1983 setting out certain additional grounds on which information should be withheld. The resolution provided that the information in the applicant’s file should be made available to him if the contributors to the file (or as regards some information the Director of Social Services) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information. Following the passing of this resolution, which was in line with Government Circular LAC (83) 14 (see paragraph 23 above), the Attorney General withdrew his application for judicial review. 26. The applicant’s case record consisted of some 352 documents contributed by 46 persons. On 23 May 1986 copies of 65 documents supplied by 19 persons were sent to the applicant’s solicitors. These were documents whose authors had consented to disclosure to the applicant. The size of each contribution disclosed varied from one letter to numerous letters and reports. 27. Those contributors who refused to waive confidentiality, although not asked to give reasons, stated, inter alia, that third-party interests could be harmed; that the contribution would be of no value if taken out of context; that professional confidence was involved; that it was not the practice to disclose reports to clients; and that too great a period of time had elapsed for a letter or report still to be in the contributor’s recollection. Furthermore, in June 1986, one contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant’s interests. 28. In a letter of 15 July 1986, the Director of Social Services of Liverpool City Council wrote to the applicant’s solicitors in the following terms: "I refer to your letter dated 11 June 1986. I would wish to be as helpful as possible to you, but at the end of the day suspect that we may have genuine differences of opinion. At least I take that to be the implication of the questions you asked. I do not think therefore, that we can take this correspondence further in a profitable way because, as I have said, it is, in the last analysis, for the provider of information, retrospectively collected, to release or refuse to release, in their absolute discretion, the information supplied from the ‘confidential’ embargo originally accorded to it. The reasons for releasing or not releasing are irrelevant whether they are good, bad or indifferent. I regret I do not feel able to help you further." 29. On 1 April 1989 the Access to Personal Files (Social Services) Regulations 1989 came into force. These regulations, made under the Access to Personal Files Act 1987 and further explained in Local Authority Circular LAC (89) 2, impose upon social services departments a duty to give to any individual access to personal information held concerning him, except for personal health information which originated from a health professional and subject to the exceptions in Regulation 9. This latter provision exempts from the obligation of disclosure, inter alia, any information from which the identity of another individual (other than a social service employee), who has not consented to the disclosure of the information, would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it. According to the Government, the effect of Regulation 9 (3) is that, in future, case records will be compiled on the basis that the information contained therein is liable to be disclosed, except in so far as disclosure would be likely to reveal the identity of the informant or another third party. However, by virtue of section 2 (4) of the Access to Personal Files Act 1987, the 1989 Regulations apply only to information recorded after the Regulations came into force, that is, after 1 April 1989. As in the case of Circular LAC (83) 14, which governed the adoption of the resolution mentioned in paragraph 25 above and the subsequent partial release of documents to Mr Gaskin, the Access to Personal Files (Social Services) Regulations 1989 do not have retrospective effect.