About this case:

• Citation:
  [2022] NIQB 55
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

The court found that the records had been correctly rectified and were now accurate, and their decision to retain the records was legitimate and proportionate.

Background

The applicant in this case suffered from mental health issues, substance misuse and periods of instability. As a result, she had involvement with social services under the direction of the respondent health and social care trust.

On 19 May 2021, she attended a pre-birth case conference organised by the trust in respect of the pending birth of her third child. The reason for convening the conference was set out as follows:

The meeting was attended by a number of multi-disciplinary professionals who were tasked with identifying if, and how, the applicant should care for her baby (‘X’) following birth.

At the meeting, it was decided that the applicant’s unborn baby’s name should be placed on the child protection register at birth under the category of “suspected neglect”. This was primarily because, during her pregnancy, she had consumed alcohol and ingested a line of cocaine.

The applicant availed of the trust’s internal appeal process to challenge the fact that she had been incorrectly categorised as “confirmed neglect”. She sought to have the categorisation “quashed” and “eradicated” from the trust’s records.

The description was incorrect, because the baby was still in utero, and “no legally recognised entity having yet been born, the category of ‘confirmed neglect’ should not have been used”.

The trust advised that they did not have the power to quash the decision of the conference or to eradicate the information from X’s file. However, the applicant’s appeal was upheld and the categorisation was replaced with that of “potential neglect”.

The trust maintained its position that it would not erase the reference to the first incorrect categorisation. This decision was being challenged in these proceedings.

The records

The challenged entries were in a file which related to the applicant’s son. They were extensive and typical of files and records relating to children embraced by social services.

The court was advised that this information would be available to “green screen” users, which may include social workers, and “blue screen” users, which includes social work staff working in childcare who have higher authorisation.

The systems would show the current category of registration, which was “potential neglect”, or that the classification had been changed from “confirmed neglect” to “potential neglect”, respectfully.

The applicant’s case

The applicant alleged a breach of her Article 8 ECHR rights. The court accepted that the retained information interfered with her Article 8 rights, but noted that this was a qualified right. Therefore, the question was whether the interference was legal, pursued for a legitimate aim and proportionate.

The first two requirements were plainly met, as the records were kept for the public interest of providing health and social care, and the records were retained to ensure compliance with the trust’s general obligations to child X under legislation.

The real issue in the case related to whether or not the decision by the trust to retain the specific records was proportionate.

The applicant was concerned that professionals involved in an ongoing care case involving her other children may access the records and see the incorrect reference to “confirmed neglect”.

She was also concerned that, in the future, her son could gain access to the records and see the incorrect categorisation.

She argued that the trust failed to carry out any balancing exercise in her situation. She asserted that the trust adopted an inflexible approach by applying its Good Management Good Records (GMGR) policy, which prevented her from applying to have the incorrect categorisation erased, irrespective of the passage of time.

In response, it was argued that the decision was proportionate, because the records related to child X. Any redaction or destruction of the records would impact his rights to have a full history of his interactions with the trust maintained.

Consideration

Firstly, the court noted that the records were not inaccurate. The first description of “confirmed neglect” was deemed to be “incorrect”, and the records clearly and accurately record this.

In considering proportionality, the court considered the extent of potential access to the records. This was limited to authorised professionals, and the child X himself.

It was, therefore, difficult to point to any significant prejudice suffered by the applicant. This was particularly so where the categorisation of “potential neglect” was not challenged.

It was also difficult for the court to see how the destruction or redaction of parts of the records could be achieved in practice. To do so would affect both the integrity and sense of the records.

Therefore, the court considered that the retention of the impugned records was proportionate. The interference with the applicant’s Article 8 rights was, in the court’s view, lawful.

The court also rejected a GDPR-based claim, noting that the information was accurate, had already been rectified, and the GDPR right to erasure was not an absolute right.

Conclusion

Ultimately, the court noted that the records were retained for an important and essential public service. Access was restricted to authorised and regulated professionals, or to child X himself, who at any stage in the course of his life would be entitled to seek access to the records.

This was why the 75-year retention period had been chosen, and was justified in the court’s view. It would be disproportionate to order that they be erased or destroyed.

The court, therefore, granted leave to the applicant to seek judicial review but dismissed the claim on the merits.