Respect for private and family life – human rights – social services records
The applicant, who was now an adult, had been periodically in the local authority’s care as a child. He suspected that he had been physically abused by his father in his childhood and sought access to his social services records from those periods, wanting to know in particular whether he had ever been on the ‘at risk register’. The applicant was provided with summary information from his file, together with certain documents and his legal advisers then requested that he be allowed full access to his file. The LA responded by pointing out that the social services records had been created before the entry into force of the Access to Personal Files Act 1987 (since repealed by the Data Protection Act 1998 (DPA)) and refusing full disclosure on the grounds that it owed a duty of confidentiality to third parties.
In his complaint to the ECtHR, the applicant argued that one of the main reasons for which he sought access his records was his belief that he had been physically abused when he was a child by his father, and his consequent need to obtain all relevant information about his childhood in order to come to terms with the emotional and psychological impact of any such abuse, and to understand his own subsequent and related behaviour. He therefore maintained that the failure to allow him unimpeded access to all social service records relating to him during those periods constituted a violation of his rights guaranteed by the Convention.
Following its decision in Gaskin v UK, the Court re-emphasised the necessity for a fair balance to be struck between the general interest of the community and the interests of the individual concerned. In this case, the records sought contained the principle source of information regarding significant periods of his formative years and related to his private and family life. The applicant had a strong interest in obtaining the records sought, which in the Gaskin case had been described as a ‘vital interest … in receiving information necessary to know and understood [one’s] childhood and early development’. The limited access given to the applicant and, most importantly, the lack of any right of appeal against a refusal of access to an independent body, led the Court to conclude that there had been a failure to fulfil the positive obligation to protect the applicant’s private and family life in respect of his access to his social services records.
The Court noted that the DPA 1998, which came into force in 2000, did provide a right of appeal to an independent body, and therefore the violation of the applicant’s art 8 rights only related to requests for access made prior to the coming into force of the DPA. The applicant was awarded 4000 euros (about £3000) in respect of non-pecuniary loss.