 House of Commons |
Session 2004 - 05 Publications on the internet Standing Committee Debates |
Fourth Standing Committee on Delegated Legislation |
|
Column Number: 1 Fourth Standing Committee on Delegated LegislationThe Committee consisted of the following Members: Chairman: Derek Conway Allan, Mr. Richard (Sheffield, Hallam) (LD)Atkinson, Mr. Peter (Hexham) (Con) Banks, Mr. Tony (West Ham) (Lab) †Crausby, Mr. David (Bolton, North-East) (Lab) †Davey, Valerie (Bristol, West) (Lab) †Davies, Geraint (Croydon, Central) (Lab) †Djanogly, Mr. Jonathan (Huntingdon) (Con) †Edwards, Mr. Huw (Monmouth) (Lab) Hawkins, Mr. Nick (Surrey Heath) (Con) †Keeble, Ms Sally (Northampton, North) (Lab) †Leslie, Mr. Christopher (Parliamentary Under-Secretary of State for Constitutional Affairs) (Lab) Marsden, Mr. Paul (Shrewsbury and Atcham) (LD) McWalter, Mr. Tony (Hemel Hempstead) (Lab/Co-op) †Morgan, Julie (Cardiff, North) (Lab) †Prentice, Ms Bridget (Lewisham, East) (Lab) †Tredinnick, Mr. David (Bosworth) (Con) Tom Goldsmith, Committee Clerk † attended the Committee Column Number: 3 Tuesday 1 March 2005[Derek Conway in the Chair]Draft Data Protection (Modification) (Social Work) (Amendment) Order 20059.55 amThe Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): I beg to move,
CAFCASS—the Children and Family Court Advisory and Support Service—has requested that an amendment to the Data Protection (Subject Access Modification) (Social Work) Order 2000 be approved. The purpose of the amendment is to ensure that, in all their roles, CAFCASS officers are exempted from having to disclose personal data to the data subject when they consider that that would be likely to cause serious physical or mental harm to either the data subject or a third party. We agree that the requested amendment is both necessary and proportionate. The Data Protection Act 1998 gives individuals several rights, one of which is the right of subject access. That is the right for individuals to be told by a data controller—in this case, a CAFCASS officer—if he or she is processing information about them and, if so, to be given a copy of that information. The individual must also be told about the purpose for which the data are being processed and those to whom the data may be disclosed. Data controllers—the CAFCASS officers—can only refuse to disclose personal data that they hold on a data subject if an order—in this case, the social work order—exempts them from having to do so. The basis for the exemption is that, if the personal data were given to the individual in question, that information would be likely to prejudice the carrying out of social work by causing serious physical or mental harm either to the data subject or a third party. The Act has allowed for a number of orders that provide exemptions from the subject access obligation—for example the health order. The Data Protection (Subject Access Modification) (Social Work) Order 2000 is one of those. I wish to give the Committee some background information. CAFCASS looks after the interests of children involved in family proceedings. It works with children and their families, and then advises the courts on what it considers to be in the children’s best interests. Matters in which CAFCASS may become involved include those when parents who are separating or divorcing cannot agree on arrangements for their children, an adoption application or when a child is subject to an application for care or
The existing social work order currently excludes some of the roles that CAFCASS officers play from the requirement to disclose personal data. However, two specific roles are not covered at present, such as children and family reporters who become involved when parents who are divorcing and separating are not able to reach agreement about arrangements for their children, such as in private law cases. They write a report to the court with a recommendation. The second role is that of guardians ad litem, when the court will appoint a guardian if it considers that it is in the best interests of the child to be made party to the proceedings in private law cases. The purpose of the guardian is to provide separate representation of the rights and interests of the child. All CAFCASS officers are involved in carrying out broadly the same type of activities as the other bodies set out in schedule 1 of the original 2000 order, such as the probation board and social services. For example, CAFCASS officers have to make assessments about attachment issues and the ability of parents to meet the needs of their children. They are also involved in risk assessments in relation to the welfare of children. However, not all the roles played by CAFCASS officers were included in the original order. CAFCASS practitioners broadly share the same social work qualifications as other social workers, so extending the exemption to cover all the roles played by CAFCASS officers is, in my view, a sensible reflection of the policy intention at the time of drafting the social work order. The terms of the order make it clear that personal data will be withheld only from the data subject in very specific circumstances as described by the order, such as if the release of that information would be likely to risk harming the applicant or a third party. However, if those circumstances do not arise, CAFCASS, of course, intends to comply fully with the data protection norms of the Data Protection Act. I hope that that has been a brief summary of the purpose of the order. 10 amMr. Jonathan Djanogly (Huntingdon) (Con): We are considering this statutory instrument at a time when, following the coming into force of the Freedom of Information Act 2000, there is an increasing public awareness of the right to request information from public authorities. Yet this order would limit the right of individuals to gain access to their personal data via a subject access request under the Data Protection Act 1998. My hon. Friends and I are of the view that there must always be a clear justification for such action. However, having heard the Minister and made clear
The order relates to the work of the Children and Family Court Advisory and Support Service, CAFCASS. At present, under the Data Protection (Subject Access Modification) (Social Work) Order 2000, CAFCASS is able to refuse a subject access request in relation to the work of its officers as children’s guardians. A CAFCASS officer acting in this public law role represents the interests of a child in cases when social services have become involved, and in contested adoptions. In those circumstances, a subject access request may be refused if it is considered that the release of personal data would be likely to prejudice the carrying out of social work by causing serious physical or mental harm to the data subject or a third party such as a CAFCASS officer. The amendment order seeks to extend this right to refuse access to cover the other work undertaken by CAFCASS officers. That includes the overarching CAFCASS responsibility for carrying out the functions set out in sections 12 and 13 of the Criminal Justice and Court Services Act 2000 in relation to any court proceedings involving the welfare of children. More specifically, the amended 2000 order, as the Minister explained, would now also cover the specific private law roles of CAFCASS officers as guardians ad litemand children and family reporters. The functions under the 2000 Act relate to any family proceedings in which the welfare of children is, or may be, in question. CAFCASS’s general role in such proceedings is to safeguard and promote the welfare of the children, advise the court about any application made to it, make provision for the children to be represented and provide information, advice and support for the children and their families. A guardian ad litemis occasionally appointed by the court for cases in which a particular difficulty has arisen that suggests that it would be in the best interests of a child to have separate representation of their rights and interests. A children and family reporter will write a report for the court when parents who are divorcing or separating have not been able to reach agreement about arrangements for their children—for example, in relation to contact and residence. Incidentally, although my hon. Friends and I are, of course, supportive of the long-standing and important public law function of protecting the welfare of children, as is presently undertaken by CAFCASS, we are not supportive of this newer private law work that is also carried out by the service. Those often unnecessary CAFCASS reports simply clog the already overburdened court system dealing with divorce proceedings. Denial of a subject access request in relation to these roles would be permitted only when the release of personal data would be likely to cause serious physical or mental harm to the data subject or a third party. As a result, I can see the logic of extending the power to refuse information requests to cover the other roles undertaken by CAFCASS officers. Column Number: 6 However, having said that, I should like to ask the Minister for some clarification The exemption to the duty to comply with subject access requests is based on the likelihood of serious physical or mental harm being caused to the data subject or a third party. The explanatory memorandum states in paragraph 4.4 that
Yet it also notes at paragraph 7.3:
I should be grateful if the Minister outlined what research, if any, has been done into the number of subject access requests already refused under the existing exemption relating to children’s guardians, into the circumstances of these cases and into whether the limits of the exemption have been consistently and accurately interpreted by CAFCASS. Unfortunately, raising such questions is unavoidable in the light of CAFCASS’s highly publicised track record. The then Select Committee on the Lord Chancellor’s Department, for instance, highlighted the
It also noted the “serious failings” in the “establishment and management” of the service. A couple of questions need to be answered, but on the whole we shall not oppose the order. 10.5 amMr. Leslie: I welcome the hon. Gentleman’s recognition that a balance must be struck in particularly limited and clearly justifiable circumstances. I also welcome his understanding that while the norms of the data protection arrangements will apply to CAFCASS as to any other public body, in certain particular circumstances where the disclosure of that information would be likely to cause serious physical or mental harm to the individual or a third party, it is right that that organisation should have the opportunity to cite the exemption from the data protection arrangements. I cannot give the hon. Gentleman details of quantitative research that has been done about the number of cases. Anecdotally, it seems that applications have been made and it has subsequently become apparent to CAFCASS officers that there was a lacuna in the original order. It was shown that it was not drafted sufficiently well to allow for circumstances where we could rely on an exemption that would protect a third party or the individual from likely serious harm. If necessary, and if the hon. Gentleman would like, I can give him a couple of examples that might illustrate that. Mr. Djanogly: I am slightly concerned that the response is that the order is based on the couple of examples and on anecdotal evidence. Presumably there must be some body of evidence that means that we are here today. Column Number: 7 Mr. Leslie: These are exceptional circumstances and they are not of high volume. In fact, I am advised that CAFCASS does not expect to use the amendment frequently or any more than was absolutely required. It reckons that a crude estimate of the number would be no more than 10 times a year. We are talking about a small number of particular cases. I will help the hon. Gentleman with an example of why that might be the case. I cite the case of Mr. X, who had been in a psychiatric hospital and was having to take medication. A subject access request may have disclosed painful and quite intimate details about how he had been sexually abused as a child. There was a concern that disclosure from CAFCASS may lead to his relapse through non-compliance with his medication. That was one circumstance where it was felt that an exemption would have helped and it is one of the reasons why we must close the loophole. I want to cite another case. CAFCASS undertook a risk assessment, which showed that Mr. Y had previously been charged with assaulting a child from his first marriage, but had been found not guilty at trial. However, all professionals who had come into contact with him before the acquittal continued to believe that the allegations were true. Column Number: 8 The risk assessment undertaken during the course of the trial concluded that Mr. Y posed a risk of, among other things, emotionally abusing his other child. The social services file showed that Mr. Y had threatened staff, and there was evidence of self-harm. CAFCASS had a concern both for the well-being of the child, staff and Mr. Y, if those concerns were known to him. Mr. Y had difficulty in dealing with staff already, and the family court reporter feared for her safety if she had to disclose personal data to him. There was a psychiatric report on the social services file, which provided the basis of the concern that Mr. Y could harm himself, if he received potentially unsettling information. Those are the sorts of examples that I hope elaborate a little why it has been felt by senior officers in CAFCASS that they needed to seek a way of closing the loophole in the exemption arrangements for data protection disclosure. I hope that that is of use to the Committee and that the order will be approved. Question put and agreed to. Resolved,
Committee rose at nine minutes past Ten o’clock. |
| |
| ©Parliamentary copyright 2005 | Prepared 2 March 2005 |
