Joint Committee On Human Rights Nineteenth Report

3 Parts 2 and 3: Children's Services

The strength of the new duties

59. Parts 2 and 3 of the Bill aim to strengthen the legal framework for achieving better co-operation between agencies delivering children's services, by providing for the better integration, planning, commissioning and delivery of such services.[72] This is a welcome aim from a human rights perspective, because it seeks to fulfil the important positive obligations owed to children under Articles 2, 3 and 8 ECHR, to take positive steps to protect their lives, to protect them from inhuman and degrading treatment, and to protect their physical integrity.

60. In Z v UK, for example, the UK was found to be in breach of Article 3 ECHR because there had been a failure of the system to protect the children concerned from serious, long-term neglect and abuse.[73] The Court held—

The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.

61. The tragic recent cases of Victoria Climbié and Toni-Ann Byfield raise the same issue in the context of the right to life under Article 2. It is clear that lack of inter-agency co-operation and proper co-ordination of the various agencies with functions concerning children has been responsible for some serious cases in which the State has failed to protect children from risks to their lives or their physical integrity.

62. We therefore welcome the objective behind Parts 2 and 3 of the Bill as a recognition on the part of the Government that measures need to be taken to secure greater inter-agency co-operation. We are concerned, however, about whether the duties imposed by the provisions in Parts 2 and 3 of the Bill are sufficiently strong to give effect to the State's positive obligations under Articles 2, 3 and 8, or the duty on State agencies to promote and safeguard the welfare of children, as required by the CRC.

The duty to co-operate to improve well-being

63. Clause 7 of the Bill creates a statutory framework for local co-operation between local authorities, key partner agencies[74] and other relevant bodies, including the voluntary and community sector, who exercise functions or engage in activities in relation to children in the authority's area. The object is to improve the well-being of children in the area in relation to "the five outcomes".[75] The local authority itself is placed under a duty to make the arrangements to promote co-operation.[76] The partner agencies are placed under a duty to co-operate in the making of arrangements.[77] Both the local authority and the partner agencies are required to exercise their functions under this section having regard to any guidance given to them by the Secretary of State.[78]

64. We welcome the adoption of a measure designed to achieve greater co-operation between the various agencies who deal with children as an important step in fulfilling the UK's positive obligation towards children under Articles 2, 3 and 8 ECHR. The report of the inquiry by Lord Laming into the death of Victoria Climbié identified the lack of effective joint working and inter-agency co-operation as being amongst the factors responsible for Victoria Climbié's death. Clause 7 addresses that concern.

65. We do, however, have a minor concern that the wording of the duty on partner agencies to co-operate with local authorities is not sufficiently clearly worded to make absolutely clear the ongoing nature of the duty. The duty imposed on partner agencies by clause 7(5) is a duty to co-operate with the authority in the making of arrangements under this section. The primary duty on the authority itself is to make arrangements for the promotion of co-operation. The duty on partner agencies is therefore a duty to co-operate in the making of arrangements to promote co-operation. We are concerned that this is too weak a duty. We think that a straightforward duty to co-operate with the authority would be preferable.

66. The Government accepts that the duty on agencies providing services for children, to "co-operate in the making of arrangements", in clause 7(5) of the Bill is not intended to refer to a single event, but is intended to imply ongoing activity in both setting up and sustaining an organisational framework for integrated services.[79] The Minister, in her evidence before us, said that clause 7 should be read as providing an ongoing and continuous duty to co-operate between the different agencies.[80]

67. We welcome the Government's clarification of the intention behind the duty to co-operate in clause 7(5), but are concerned that leaving that intention to be inferred from the current language is not sufficient to achieve the important purpose of this provision. The recent work of the Audit Commission has demonstrated that there is a pervasive culture of minimal compliance in overworked local authorities.[81] The recent report by the CRE on the extent to which police authorities are complying with the new duties imposed by the Race Relations Amendment Act 2000 gives rise to the same concern.[82]

68. We recommend that the Government's intention that there should be an ongoing duty on partner agencies to co-operate should be made explicit on the face of the legislation, or, at the very least, in the Secretary of State's guidance issued under clause 7(8).

The "safeguarding and promoting welfare" duty

69. Clause 8 of the Bill applies to specified bodies who have functions concerning children, and imposes a duty to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children.[83] This falls well short of a substantive duty to safeguard and promote the welfare of children.

70. First, it is a procedural duty only: it refers to the relevant authorities "having regard to the need to safeguard and promote the welfare of children" when discharging their functions. This is clearly inferior to a substantive duty which would require the authorities to safeguard and promote the welfare of children when carrying out their functions, or to carry out their functions in a way which safeguards and promotes the welfare of children. A substantive duty would require outcomes to be compatible with safeguarding the welfare of children, not merely processes to ensure that safeguarding the welfare of children is taken into account as a relevant consideration.

71. Second, the duty in clause 8 is not even a free-standing procedural duty to have regard to the need to safeguard and promote the welfare of children: it is a duty to "make arrangements" for ensuring that their functions are discharged having regard to that need. This looks more like a one-off duty to make arrangements than an on-going duty to have regard to the need to safeguard and promote the welfare of children. It is not clear, for example, whether, once such arrangements have been made, an arguable failure to have regard to the need to safeguard and promote the welfare of children when discharging a particular function could be legally challenged under clause 8 when such arrangements already exist.

72. The contrast between a strong substantive duty and a weak procedural one is demonstrated by comparing clause 8 with s. 6(1) of the Human Rights Act 1998. That provision requires public authorities to discharge all their functions in a way which is compatible with Convention rights. It does not merely require them to take account of those rights when performing their primary functions, nor merely to make arrangements to ensure that regard is had to Convention rights when discharging their functions.

73. We wrote to the Minister asking what justification there was for the weakness of the duty in clause 8.[84] The response was that the Government "does not want agencies' consideration of children's needs to compromise their ability meet their primary purpose".[85] The new duty imposed by clause 8 was not intended to become a primary function of agencies, nor to impose a new additional function on an agency. The Government's concern was that some agencies have responsibilities which may cause them, in an individual case, to take action (e.g. imprisoning offenders who have children) which could be regarded as contrary to promoting the welfare of a particular child.

74. In her evidence before us, however, the Minister said that the wording of the clause 8 duty should not be read as suggesting that the safety and welfare of children was of secondary importance: it was of paramount importance,[86] and clause 8 should not be read as subordinating the rights of the child to the primary functions of the various agencies but of elevating the rights of the child as being of primary importance.

75. We welcome the Minister's reassurance that the intention behind the wording of clause 8 is not to subordinate the welfare of the child to the agencies' other functions, but to elevate it to the status of a primary consideration. We consider that nothing less is required: in light of the UK's obligation under Article 3 CRC (in all actions concerning children the best interests of the child shall be a primary consideration), it could not be justifiable to create a legal framework in which the welfare of the child is relegated to a secondary status by being subordinated to agencies' other "primary" functions.

76. For the reasons we have set out above, the ordinary and natural meaning of the language of the clause is that it imposes only a weak procedural duty rather than a strong substantive one of the kind the Minister states is intended by the Government. The public, agencies and the courts should be able to ascertain from the face of the legislation exactly what is required by the duty, rather than have to consult Hansard to discover what the minister said to a parliamentary committee. We do not consider that this has been achieved with the present wording.

77. We recommend that Clause 8 be amended so as to give effect to what the Minister clearly stated is the intention of the clause. In other words it should impose an express direct duty on children's services authorities and other key agencies to promote and safeguard the welfare of children, or explicitly require that the best interests of the child be treated as a primary consideration in the discharge of their functions.

Private contractors exercising public functions

78. Clause 8(2)(b) of the Bill places a duty on the relevant public authorities to make arrangements to ensure that services provided by another person on their behalf (including private contractors) are provided having regard to the need to safeguard and promote children's welfare. The purpose of this provision is to make clear that the duty in clause 8(2)(a) continues to apply where the relevant body contracts out services.[87]

79. This contrasts with the approach of the Human Rights Act 1998, which directly imposes the duty to act compatibly with ECHR rights[88] on any body exercising functions of a public nature, which includes private contractors acting on behalf of a public authority.[89]

80. This is a question to which we have previously given very careful consideration. In our report The Meaning of Public Authority under the Human Rights Act,[90] we concluded that requiring public bodies to make contractual arrangements with private contractors to ensure the protection of human rights was less effective than imposing the duty to act compatibly directly on the private contractor where it is exercising public functions. We also concluded that there should always be direct accountability of the service provider for respecting the rights of the user of the services, in addition to the accountability of the public body. We were not convinced that reliance on the inclusion of contractual terms for human rights protection could provide fully comprehensive, consistent and equal human rights protection for the recipients of public services on an equal basis with statutory responsibility under section 6 of the Human Rights Act.

81. We therefore asked the Minister what the justification was for not imposing the duty in clause 8(2)(b) of the Bill directly on contractors.[91] The Minister's written response asserted that it would not be "appropriate" to bind private companies or voluntary organisations.[92] The only reason given for this assertion was that this is the better approach because the public body cannot delegate its functions and remains responsible for ensuring that the proper service is provided.

82. The Minister elaborated on this in her oral evidence.[93] She said that the reason for not imposing the duty directly on the contractor was that this would "muddle accountabilities", which would go against one of the central purposes of the Bill, namely to ensure that there is clear accountability among the professionals involved in a child's life as to who is responsible for that child—

If an agency chooses to contract out, we do not want the agency to believe that in any way would remove them from their accountability for safeguarding the children and ensuring their well-being. … if the separate duty was pushed on to the contractor I think there would be room in that situation … for the agency to say 'Actually this was not my responsibility, it was the contractor's responsibility' and therefore you would lose some of the accountabilities that we are trying to really bolt down in this legislation.[94]

The Minister did not consider this approach to involve any lesser degree of protection than that provided by the approach adopted under the Human Rights Act.

83. We are not persuaded that imposing the duty directly on private contractors, as well as on public authorities, in any way detracts from the accountability of public authorities. On the contrary, we remain concerned about the deficit of accountability which arises when a service provider is not directly accountable to the user of their services, but only indirectly through the enforcement of contractual terms between it and the public authority. We remain of the view, expressed in our earlier report, that leaving the protection of rights to the process of contractual negotiation with private providers is less effective than imposing a duty directly on private providers where they are exercising a public function.

84. We would emphasise that imposing the duty on the public authority or the private provider are not alternatives: the duty can apply to both, and the public authority's responsibility will therefore be ongoing even where it has contracted out the provision of a service to a private body. This would provide the necessary incentive to the public authority to monitor and keep under review the adequacy of its contractual arrangements with private contractors to ensure that the duty is performed.

85. We consider that there is no justification for adopting an approach to private contractors in the Children Bill which is inferior to that in the Human Rights Act. We recommend that the Bill should be amended in order to make clear that the duty to safeguard and promote the welfare of children applies to both public authorities and private contractors discharging their functions on the public authorities' behalf.

Exclusion of immigration/asylum agencies

86. Immigration and asylum agencies, such as the Immigration Service, the National Asylum Support Service ("NASS"), and immigration removal centres, are excluded from the new duties imposed by Clauses 7 and 8 of the Bill, and from the new institutional arrangements for safeguarding children established by clause 10. They are not included in the list of "relevant partners" in clause 7(4) of the Bill, and therefore are not under the duty co-operate with children's services authorities in clause 7(5). They are not included either in the list of authorities in clause 8(1), and therefore are not under the duty to make arrangements to safeguard and promote children's welfare under clause 8(2). Nor are they included in the list of "Board partners" in clause 10(3), and therefore are not represented on Local Safeguarding Children Boards.

87. As a result of these omissions, the most important agencies providing services to a particularly vulnerable group of children[95] are not subjected to the new duties in the Bill designed to safeguard children's well-being, nor are they included in the institutional arrangements designed to achieve that purpose. In our previous report on the Bill, we indicated our preliminary concern that the omission of this particular group of children from the new provisions designed to fulfil the State's positive obligations to children under Articles 2, 3 and 8 ECHR amounted to unjustifiable discrimination in the enjoyment of Convention rights on grounds of nationality. We therefore asked the Minister what the justification is for excluding immigration/asylum agencies from the scope of the Bill.

88. The reason given for excluding these agencies from the clause 7 duty to co-operate with children's services authorities was that they do not fulfil the criteria required for partnership under clause 7, which are that the body concerned must be responsible for strategic decision-making and the commissioning of services at local level.[96] A similar reason appears to be relied on in relation to their exclusion from Local Safeguarding Children Boards, onto which the agencies could be co-opted pursuant to the discretionary power provided in the Bill. No further justification is offered, other than the Government's own stipulation of the requirement that the agencies be "local" not national.

89. We are not persuaded that the distinction between local and national agencies is a good reason for excluding immigration and asylum agencies from the duty to co-operate in clause 7 and the Boards established by clause 10. The positive obligation imposed by human rights law recognises no such distinction between types of agency which may need to co-operate in order to protect the rights and interests of children.

90. The Government's position also ignores one of the important lessons to be learned from the recent tragic death of Toni-Ann Byfield. The Report of the Birmingham Area Child Protection Committee into that case found that it "demonstrated the need to develop closer working relationships between local social care and health services and the national Immigration Service".[97] It concluded "there is a pressing need for a more proactive approach to the achievement of more effective practice and mutual understanding between local authority services and the Immigration Service if the future welfare of children in a similar position to Toni-Ann is to be assured". It recommended the development of closer working partnerships between the Immigration Service and social services departments and, in future, Local Safeguarding Children Boards.[98] The tragic consequences of the lack of co-ordination and co-operation in that case demonstrates the need for the immigration authorities to be brought within the scope of the duty to co-operate.

91. We also note that a recent research report by ECPAT UK, concluded that there is a problem identifying children who are being trafficked, and that "the issue of trafficking can only be dealt with from a multi-agency approach, incorporating police, immigration, social services and voluntary organisations".[99]

92. We are not persuaded that there is a justification for excluding immigration and asylum agencies from the scope of the duty to co-operate in clause 7 or from automatic membership of Local Safeguarding Children Boards under clause 10. We consider that these omissions should be remedied in order to ensure equal treatment for asylum-seeking children.

93. The Minister's reason for excluding immigration and asylum agencies from the clause 8 duty (to have regard to the need to safeguard and promote the welfare of children) is that such a duty may conflict with the need to maintain an effective immigration control.[100] The concern is that such a duty might "cut across" existing policies and procedures which may not appear to promote the welfare of children, such as decisions not to admit a family with children, or the detention of asylum-seeker families with children. She told us—

… the purpose of the Immigration Service is to ensure that we implement our immigration controls. That is its primary purpose. The belief in Government is that there will be confusion caused in pursuing that primary purpose if the duties in relation to children were also imposed on the Immigration Service. [101]

94. The Minister also told us that the Government was pursuing other ways of ensuring that in the implementation of immigration control regard is had to the well-being of children, and assured us that there are already sufficient safeguards in the system to ensure that children are protected. However, we find it impossible to avoid the conclusion that the Government's position is that the welfare of asylum-seeking children is secondary to the need to maintain effective immigration control.

95. We remind Parliament of the conclusion of the UN Committee on the Rights of the Child in 2002 that the UK's reservation to the CRC on immigration and citizenship is "against the object and purpose of the Convention". We remain of the view expressed in our earlier report on the CRC that the existence of the UK's reservation to the CRC concerning immigration and nationality appears to legitimise unequal treatment of these vulnerable children both by central government and local service providers.[102] We recommended in that report that the Government demonstrate its commitment to the equal treatment of all children by withdrawing its reservation to the CRC relating to immigration and nationality. We are disappointed that not only has the Government failed to act on this recommendation, but it now seeks to rely on that reservation to justify further differential treatment of asylum-seeking children in new legislative measures.

96. The UK's reservation to the CRC cannot, however, be relied on to justify differential treatment of asylum-seeking children in relation to their Convention rights. We are not persuaded that the Government has put forward any convincing justification for treating asylum-seeking children differently from UK national children in the Children Bill.

97. As people within the jurisdiction, asylum-seeking children are entitled to equal enjoyment of Convention rights unless there is a good reason for granting them only lesser protection.[103] The measures introduced in clauses 7, 8 and 10 of the Bill are designed to fulfil the State's positive obligation to protect children under Articles 2, 3 and 8 of the Convention. Asylum-seeking children are treated less favourably by the exclusion from the scope of the new measures of all the main agencies with which they come into contact and on which they rely for basic services. The only justification relied on by the Government is the need to maintain an effective immigration control. We do not accept that this consideration justifies the lower level of protection afforded to asylum-seeking children. We conclude that the exclusion of immigration/asylum agencies from the scope of the new duties and arrangements is unjustifiable discrimination against such children on grounds of nationality.

Information Sharing

98. Clause 9 of the Bill provides for the creation of databases containing information in respect of persons to whom arrangements under clauses 7 or 8 of the Bill, and s. 175 Education Act 2002,[104] relate.[105] The Secretary of State is given power either to require children's services authorities to establish and operate such databases[106] or to establish and operate one or more such databases him or herself, or make arrangements for doing so,[107] including by establishing a body corporate to establish and operate such databases.[108] Such databases may only include certain types of information in relation to persons on the database:[109]

  • name, address and date of birth;
  • identifying number;
  • name and contact details of any person with parental responsibility for the child or who has care of the child at any time;
  • details of any education being received by the child (including name and contact details of any educational institution being attended);
  • name and contact details of any person providing primary medical services in relation to the child;
  • name and contact details of any person providing to the child services of such description as the Secretary of State may by regulations specify;
  • information as to the existence of any cause for concern in relation to the child;
  • information of such other description as the Secretary of State may by regulations specify, but not including medical records or other personal records.

99. Clause 9(5) gives the Secretary of State power to make regulations to make provision in relation to the establishment and operation of any such databases, including (clause 9(6)):

  • as to the information which may or must be contained in such database;[110]
  • permitting or requiring specified persons or bodies to disclose information for inclusion in the database;[111]
  • permitting or requiring the disclosure of information included in such database;[112]
  • permitting or requiring any person to be given access to such database to add to or read the information;[113]
  • as to the conditions on which such access to the database may or must be given; [114]
  • as to the length of time for which information may or must be retained;[115]
  • as to proceedings for ensuring the accuracy of information included in any such database.[116]

The regulations may also provide that anything which may be done under the regulations permitting or requiring disclosure of information or access to the database may be done notwithstanding any rule of common law which prohibits or restricts the disclosure of information.[117]

100. The Secretary of State is given power to issue guidance and directions to any person or body establishing or operating such a database, who is under an obligation to have regard to such guidance.[118] Such guidance may include the giving of advice in relation to rights under the Data Protection Act 1998.[119]

The human rights implications of the information sharing provisions

101. It is an important part of the State's positive obligation to secure Convention rights to all those within its jurisdiction that its laws facilitate the sharing of information about individuals to the extent that this is necessary to protect their Convention rights (including where necessary against interference by other individuals). It is well established in the case-law of the Convention that children are in a vulnerable position and that the authorities are therefore under a duty to protect them against risks to their life and against exposure to cruel, inhuman or degrading treatment. A positive obligation to take preventive operational measures to avert such risks will arise in circumstances where the authorities knew or ought to have known of the existence of such real and immediate risks to the child. States are therefore at risk of being found to be in breach of their positive obligations to protect children where the relevant authorities ought to have known of the risks to the child and failed to take the necessary measures which might reasonably have been expected to avert that risk.

102. It follows that the positive obligations on the State to take active steps to protect the lives of children under Article 2 ECHR, and to protect them from inhuman and degrading treatment under Article 3 or serious risks to their physical integrity under Article 8,[120] referred to above, may require, in certain circumstances, the sharing of information about the child, to the extent that it is necessary to provide the requisite protection for the rights at stake. Some provision in national law for information sharing concerning children and young people is therefore required by the positive obligations imposed by human rights law. We acknowledge that the Government is seeking in these provisions to discharge these positive obligations.

103. However, there is an important countervailing privacy interest at stake: the sharing of any personal information is an interference with Article 8 ECHR which requires justification. The European Court of Human Rights has consistently held that the protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life.[121] Respecting the confidentiality of health data in particular has been held to be a vital principle, crucial not only to respect a patient's sense of privacy, but also to preserve his or her confidence in the medical profession and the health services. The Court has recognised that, without such protection, those in need of medical assistance may be deterred from revealing such personal information as may be necessary to receive appropriate treatment, and even from seeking such assistance in the first place. Article 8 therefore requires there to be appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the purpose of Article 8.

104. Children prima facie enjoy the benefit of the protection of the privacy of personal information in Article 8, even though obviously the younger or more vulnerable the child the weightier is likely to be the justification for any interference with that right under Article 8(2). The less vulnerable the child, and in particular the more mature they are, and the more sensitive the information, the more is likely to be required by way of justification for the interference.

105. The Explanatory Notes to the Bill as introduced acknowledged that the creation of databases containing personal details of all children may constitute an interference with Article 8 rights, but asserted that the interference is proportionate and justified under Article 8(2).[122] No reasoning was offered to elaborate on this single sentence assertion that the interference with Article 8 is proportionate. The Explanatory Notes claimed that clause 9 sets out "the principles that would govern information sharing using the information databases", and that the regulations will deal with "detailed operational requirements".[123] It appeared to the Committee that, in fact, clause 9 as originally introduced contained very few "principles" which would regulate the use of the proposed databases. The key questions which must be asked in order to assess for compatibility with Article 8 ECHR were left unanswered, to be dealt with in the regulations.

106. It was therefore impossible for the Committee to make any judgment about the proportionality of what will undoubtedly constitute an interference with Article 8 rights in the absence of more detail about what is proposed. We therefore asked the Minister a number of detailed questions about how it was proposed that the broad power conferred on the Secretary of State would be exercised, and in particular what protections would be afforded for the Article 8 rights of the children included on the database.[124]

107. The Government accepted the need for there to be more detail on the face of the Bill and introduced a number of amendments in the House of Lords, setting out the main basic information to be held on the database in relation to each child, specifying the main persons or bodies required or permitted to supply information to the database and providing for the conditions under which access to the database will be granted to be set out in regulations rather than guidance.

108. We welcome the Government's acceptance of the need for more detail on the face of the legislation and its willingness to introduce amendments responding to the concerns raised. However, we continue to have a number of concerns about the compatibility of the proposed database with Article 8 ECHR.

The lack of detail in the Bill

109. We remain concerned about the lack of detail contained on the face of the Bill and the breadth of the regulation-making powers being conferred on the Secretary of State in a context involving serious interferences with Article 8 rights. The Government's explanation for not dealing with the details of the proposed databases in primary legislation is that it needs to retain flexibility to develop the databases in light of the experiences of the current pilot projects being carried out and technical advice which has been commissioned but not yet delivered.

110. In our reports we have repeatedly stressed the fundamental importance of the right to respect for private life in Article 8 ECHR. The creation of databases containing personal information and providing for its disclosure to third parties involve serious interferences with the right to respect for private life in Article 8 which must be strongly justified and accompanied by adequate procedural safeguards against arbitrariness. The trailblazer pilots, which are likely to be the main source of the evidence going to justification, are still in progress. Parliament is being asked to authorize in advance a major interference with Article 8 rights without the evidence demonstrating its necessity being available.

111. We have also repeatedly stressed the importance of the safeguards for Article 8 rights being contained in the primary legislation in order for it to be possible to say that the legislation is compatible with Convention rights. The fact that the regulations must be made by affirmative resolution procedure therefore does not fully meet our concern in this respect. Such instruments are unamendable.[125] Given the importance of the rights at stake, it is always preferable for the necessary procedural safeguards to be contained in primary legislation and subjected to full parliamentary scrutiny for compatibility with human rights.

The scope of the databases

112. The Government has made clear that the purpose of the databases is to provide a tool to help ensure that all children get all the services they need at the earliest stage possible. The databases are not to be confined to children who are considered to be in need, at risk, or otherwise vulnerable: it covers all children. The Government argues that universal coverage is necessary in order to achieve the aim of ensuring the welfare of all children, and that the interference with children's Article 8 rights is proportionate because there are limits on the type of information recorded and control over access to that information.

113. The question that must be addressed is whether such a general aim as improving the well-being and promoting the welfare of all children is capable of justifying such a serious interference with Article 8 rights. The death of Victoria Climbié, and the inadequacies of communication between state agencies exposed by the Laming inquiry, have generated a sense of outrage and a determination to prevent the same avoidable errors being repeated. Maintaining a child protection register, or even a register of children "in need" and therefore in receipt of Children Act assistance from the local authority, is a much more targeted measure aimed at protecting vulnerable children. But a universal database seems to us to be rather more difficult to justify in Article 8 terms. Adults are also the beneficiaries of universal services such as health care and other services, such as community care, for which they may be eligible in certain circumstances. It appears to us that the strict logic of the Government's position is that it would be a justifiable interference with adults' Article 8 rights to maintain a similar universal database of all adults in the UK in order to ensure that those amongst them who are or may be entitled to receive certain services from the state actually receive them. We are concerned that, if the justification for information-sharing about children is that it is always proportionate where the purpose is to identify children who need child welfare services, there is no meaningful content left to a child's Article 8 right to privacy and confidentiality in their personal information.

The nature of the information on the database

114. The Government accepts that no "case information" should be recorded on the databases. We welcome the Government's amendment of the Bill to make clear that regulations cannot provide for medical records or other personal records to be included on the database.[126] We also welcome the Government's acceptance that the database will operate in accordance with the Data Protection Act 1998, and its amendment of the Bill to provide for guidance to include advice about existing rights under the Data Protection Act.[127] However, the information which may be included on the database about a child goes beyond purely objective facts about a child, such as their name, address and date of birth. It includes information, such as contact details of persons providing services including health services, which may reveal very sensitive information about a child, such as the fact that a seventeen year old girl has been referred to family planning services. It also includes "the existence of any cause for concern" about a child, which is an extremely subjective and open-ended phrase which is almost bound to include very sensitive information about a child.

115. We welcome the fact that the Government accepts that this is a matter which must be dealt with carefully. It has promised to consult about the extent to which the inclusion of sensitive information about a child, or its disclosure, should be subject to the consent of the child or their parents, with a view to dealing with the matter in regulations.[128] We look forward to an opportunity to scrutinise a draft of those regulations. We remind the Government that Article 8 requires that there be adequate procedural safeguards regulating the disclosure of sensitive personal information, and these may require participation by the person who is the subject of the information in decisions concerning the inclusion and disclosure of certain types of information.

116. We also note that the information recorded will include the contact details of professionals involved with the child in the expectation that professionals will contact each other and share information about the child. In our view there will be a need for detailed guidance to professionals about the appropriate limits of information-sharing in order to ensure proper protection for children's Article 8 rights. We welcome the Government's acceptance of the need for comprehensive statutory guidance on information sharing, in response to an amendment proposed by the Earl of Northesk and supported by Lord Campbell of Alloway, a member of this Committee.[129] We trust that the Committee will be fully consulted on the draft of such guidance, given its important implications for Article 8 rights.

117. We draw these matters to the attention of each House.

72   Part 2 deals with children's services in England. Part 3 makes identical provision for Wales with the necessary modifications. For ease of reference, this Report refers to the provisions in Part 2. Back

73   (2002) 34 EHRR 3, at paras 73-75. Back

74   The include the police authority and the chief officer of police; a local probation board; and a Strategic Health Authority and Primary Care Trust: clause 7(4). Back

75   Clause 7(2) Back

76   Clause 7(1) Back

77   Clause 7(5) Back

78   Clause 7(8) Back

79   Appendix 1 Back

80   QQ 124-125. Back

81   Audit Commission, Human Rights: improving the delivery of public services, 2003 Back

82   Formal Investigation of the Police Service in England and Wales-Interim Report, June 2004, available from CRE website ( Back

83   Clause 8(2)(a) Back

84   See Twelfth Report, Session 2003-04, op cit., Appendix 1, Q 7. Back

85   Appendix 1 Back

86   QQ 122-123. Back

87   EN para. 48 Back

88   Under s. 6(1) Human Rights Act 1998. Back

89   Section 6(3)(b) of the Human Rights Act 1998 provides: "In this section 'public authority' includes - … (b) any person certain of whose functions are functions of a public nature." Back

90   Seventh Report, Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39/HC 382. Back

91   See Twelfth Report, Session 2003-04, op cit., Appendix 1, Q 8. Back

92   Appendix 1 Back

93   QQ 126-128. Back

94   Q 126 Back

95   The UN Committee on the Rights of the Child, in its 2002 Concluding Observations on the United Kingdom (para. 47), raised a number of concerns about the treatment of such children, including concerns about detention, dispersal and access to health care and education: see our Tenth Report, Session 2002-03, The UN Convention on the Rights of the Child, HL Paper 117/HC 81, Annex 3. Back

96   See Appendix 1; Q 129. Back

97   Birmingham Area Child Protection Committee, Chapter 8 Case Review, Toni-Ann Byfield (April 2004), para. 10. Back

98   "Recommendation 11: Closer partnership working between Immigration and Nationality Directorate and local authority Social Services Departments and future Local Safeguarding Children Boards at local level needs to be developed to ensure better dissemination of information on children seeking to enter the United Kingdom.

Recommendation 12: … Arrangements need to be developed whereby Immigration inform Social Services immediately if an immigration officer considers, or has reason to believe, a child to be at risk of harm." Back

99   End Child Prostitution and Trafficking of Children for Sexual Purposes, ECPAT UK, Cause for Concern? London Social Services and Child Trafficking Back

100   Appendix 1 Back

101   Q 129. Back

102   Tenth Report, Session 2002-03, op cit., para. 86. Back

103   Articles 1 and 14 ECHR Back

104   Section 175 Education Act 2002 imposes a duty on LEAs and governing bodies of maintained schools to make arrangements for ensuring that their respective functions are exercised with a view to safeguarding and promoting the welfare of children. Back

105   Clause 23 confers a similar power on the National Assembly for Wales, subject to Assembly procedures. Back

106   Clause 9(1)(a) Back

107   Clause 9(1)(b) Back

108   Clause 9(2) Back

109   Clauses 9(3) and (4), introduced by the Government on Report. Back

110   Clause 9(6)(a) (subject to the limitation in clause 9(3)). Back

111   Clause 9(6)(b) and (c).The persons and bodies are specified in clauses 9(7) and (8).The Secretary of State is given power to add to the list of specified bodies by regulation: Clauses 9(7)(f) and 9(8)(e). Back

112   Clause 9(6)(d) Back

113   Clause 9(6)(e) Back

114   Clause 9(6)(f) Back

115   Clause 9(6)(g) Back

116   Clause 9(6)(h) Back

117   Clause 9(11) Back

118   Clause 9(13) Back

119   Clause 9(13)(e) Back

120   See Z v UK (2002) 34 EHRR 3 Back

121   See for example Z v Finland (1998) 25 EHRR 371 at para. 95; M.S. v Sweden (1999) 28 EHRR 313 at para. 41; R (Robertson) v City of Wakefield MC [2002] 2 WLR 889 (disclosure of details on the electoral roll). Back

122   EN para. 209 Back

123   EN para. 51 Back

124   See Twelfth Report, Session 2003-04, op cit., Appendix 1, QQ 10-12. Back

125   The House of Lords Delegated Powers and Regulatory Reform Committee expressed its concern about the broad delegation involved in the skeleton provisions of clauses 9, despite the importance and sensitivity of their subject-matter: Twelfth Report, Session 2003-04, op cit., para. 23. Back

126   Clause 9(4)(h), inserted by the House of Lords on third reading. Back

127   Clause 9(13)(e) Back

128   HL Deb., 5 July 2004, col. 575. Back

129   Baroness Ashton, HL Deb., 15 July 2004, cols. 1431-1432. Back

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