Application No. 10454/83
GRAHAM GASKIN
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 13 November 1987)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-18) ....................... 1
The application (paras. 2-4) ...................... 1
The proceedings (paras. 5-13) ..................... 1
The present Report (paras. 14-18) ................. 3
II. ESTABLISHMENT OF THE FACTS (paras. 19-42) ......... 4
III. SUBMISSIONS OF THE PARTIES (paras. 43-82) ......... 9
1. The applicant (paras. 43-63) ...................... 9
2. The Government (paras. 64-82) ..................... 12
IV. OPINION OF THE COMMISSION (paras. 83-110) ........... 18
A. Points at issue (para. 83) ........................ 18
B. Is the refusal of access to the file an
interference with the applicant's rights under
Article 8 para. 1 of the Convention?
(paras. 84-91) .................................... 18
C. Is the interference justified under Article 8
para. 2 of the Convention? (paras. 91-97) ......... 19
a) In accordance with the law (paras. 92-96) ..... 20
b) Legitimate aim (para. 97) ..................... 21
c) Necessity in a democratic society
(paras. 98-103) ............................... 21
D. Conclusion (para. 104) ............................ 23
E. Does the refusal of access to the file violate
Article 10 of the Convention? (paras. 105-108) .... 23
F. Conclusion (para. 109) ............................ 24
G. Recapitulation (para. 110) ........................ 24
Partly dissenting opinion of MM. G. Jörundsson,
A.S. Gözübüyük, A. Weitzel, H. Danelius and
Sir Basil Hall ............................................ 25
Partly dissenting opinion of Mr. H.G. Schermers ........... 27
Appendix I History of the proceedings ................ 28
Appendix II Decision on the admissibility
of the application ........................ 30
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before it.
The application
2. The applicant is a British citizen born in 1959 now living in
Denmark. He has been represented before the Commission by Messrs. E.
Rex Makin & Co., Solicitors of Liverpool. The respondent Government
were represented by Mr. M. Eaton and subsequently by Mr. M. Wood, both
of the Foreign and Commonwealth Office, London, as their Agent.
3. In 1959, aged six months, the applicant was taken into care by
the Liverpool City Council ("the local authority") following his
mother's death. He remained in the local authority's care until his
majority in 1977.
4. The applicant seeks access to the file maintained on him
during his period of care by the local authority. He contends that he
was badly treated in care and originally wished to take legal
proceedings in this connection. Now, however, he wants access to the
file in order to be able to address the difficulties and personal
problems which his unsettled background, and his lack of knowledge of
his past, has created. He contends that the refusal of access to the
whole file is contrary to his right to respect for his private and
family life protected by Article 8 of the Convention and his right to
receive information, protected by Article 10 of the Convention.
The proceedings
5. The application was introduced on 17 February 1983 and was
registered on 13 June 1983.
6. On 4 July 1984 the Commission decided in accordance with Rule
42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to submit
before 2 November 1984 their observations in writing on the
admissibility and merits of the application. The respondent
Government's observations were submitted, after an extension of
the time-limit until 19 December 1984, on 17 December 1984, and
observations in reply were submitted by the applicant's
representatives on 22 April 1985.
7. On 8 July 1985 the Commission decided to invite the parties to
make submissions on the admissibility and merits of the application at
a hearing pursuant to Rule 42 (3)(b) of the Rules of Procedure. At
the hearing, which was held on 23 January 1986, the parties were
represented as follows:
For the Government:
Mr. M. R. Eaton Foreign and Commonwealth Office Agent
Mr. N. Bratza Barrister Counsel
Miss P. Barrett ) Adviser
) Department of Health
Mr. E. R. Moutrie ) and Adviser
) Social Security
Mr. R. Langham ) Adviser
Mr. M. Swallow Liverpool City Council, Solicitor Adviser
For the applicant:
Mr. E. Rex Makin Solicitor Counsel
Mr. Robin Makin Solicitor's articled clerk Adviser
8. On 23 January 1986 the Commission declared admissible the
applicant's complaint concerning the continuing refusal of the local
authority to give him access to the file. The remainder of the
application was declared inadmissible.
9. The parties were informed of the Commission's decision by
telephone on 24 January 1986 and by letter on 12 February 1986. They
were further informed that the Commission had decided to invite the
respondent Government pursuant to Rule 45 of the Rules of Procedure to
provide certain information concerning the nature of the file and the
restriction of access to it. The time limit for the submission of
this information was to run from the dispatch of the text of the
Commission's decision on the admissibility of the application. These
questions were communicated to the respondent Government on 25 March
1986 when the Commission's decision on admissibility was dispatched to
the parties pursuant to Rule 43 (1) of the Rules of Procedure.
10. On 18 June 1986 the respondent Government provided the
information requested by the Commission, which was forwarded to the
applicant's representatives for their comments in reply. The
applicant's representatives' comments were submitted on 28 July 1986.
11. On 13 October 1986 the Commission resumed its examination of
the merits of the application and invited the parties to submit such
further observations on the merits of the application as they might
wish to make before 2 January 1987.
12. On 2 December 1986 the respondent Government informed the
Commission that they did not wish to lodge any further observations on
the merits. On 13 January 1987 the applicant's representatives
informed the Commission that they did not propose to lodge any further
observations on the merits.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement.
In the light of the parties' reaction, the Commission now finds that
there is no basis upon which a settlement can be effected.
The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
15. The text of this Report was adopted by the Commission on
13 November 1987 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
16. The purpose of the present Report, pursuant to Article 31
para. 1 of the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
17. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
19. The applicant is a British citizen born in 1959 who now lives
in Denmark. In December 1959 the applicant was taken into the care of
Liverpool City Council ("the local authority") under Section 1 of the
Children Act 1948 following the death of his mother. He remained in
the care of the local authority until he attained his majority in
1977. During the major part of this period the applicant was boarded
out with various foster parents, subject to the provisions of the
Boarding-Out of Children Regulations 1955. Under the terms of those
regulations the local authority was under a duty to keep certain
confidential records concerning the applicant and his care.
20. The applicant contends that he was extremely badly treated in
care, including treatment amounting to ill-treatment, 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 substantiate his
allegations and to help him to overcome his problems and learn about
his past.
21. On 9 October 1978 the applicant visited the offices of the
Social Services Department of the local authority and was informally
shown his case file. It appears that the applicant managed to leave
the building with the file, which he subsequently returned on
12 October 1978.
22. In 1979 the applicant sought to bring proceedings against the
local authority for damages for personal injuries which he contends
were caused by its negligent failure to carry out its duties towards
him. In connection with these proceedings the applicant made an
application under Section 31 of the Administration of Justice Act 1970
("the 1970 Act") for discovery of the local authority's case notes and
records made during his period in care. Section 31 of the 1970 Act
provides that the High Court may order such disclosure to a person who
is likely to be a party to legal proceedings for personal injuries or
death.
23. The applicant's originating summons requesting discovery of
the case file and records came before the Queen's Bench Division of
the High Court on 22 February 1980. It was conceded by the local
authority that a file on the applicant's period spent in care existed
and that documents which would be relevant to the applicant's proposed
proceedings for personal injuries were held by it. The local
authority objected to the grant of discovery on the ground that
disclosure and production would be contrary to the public interest.
24. It was contended for the local authority that the keeping of
detailed case records on every child in care was necessary to ensure
that the authority's judgments and decisions made in respect of such
children could be based upon the fullest possible information. In
contrast with the natural parents, who had their own experience to
draw on in taking such decisions in relation to their child or
children, the local authority, with changing personnel, had no
substitute for full and frank records compiled by those in contact
with, and responsible for, the care of any child in care. The
principal contributors to these 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 considered by the local authority to be
axiomatic to the proper conduct of the care system that such records
be as full and frank as possible. The authority therefore contended
that, 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 unless they
could be sure that the reports would be protected from disclosure.
25. The applicant contended that the information held by the local
authority in the form of the records and case file was decisive as
evidence in his proposed proceedings for personal injuries against the
local authority, and that it should therefore be made available to him
on the general principles of discovery. 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 in relation to a child
in its care be available.
26. The judge did not read the records in question, but evaluated
the arguments as to whether the applicant should be given access to
the file for the purpose of the proposed litigation. 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."
27. The applicant appealed from this decision to the Court of
Appeal. On 27 June 1980 the Court of Appeal dismissed the appeal.
The applicant's petition for leave to appeal to the House of Lords was
rejected.
28. The applicant has since sought access to the whole file,
otherwise than for the purposes of litigation. On 21 October 1980 the
local authority passed a resolution relating to access to personal
files held by the Social Services Department setting up a
sub-committee to make recommendations on access to personal social
services files, and to investigate the allegations in the case
relating to the applicant.
29. This Child Care Records Sub-Committee ("the sub-committee")
passed a resolution dated 17 June 1982 which recommended that relevant
child care records should be made available to ex-clients of the local
authority once all information obtained from members of the medical
profession or from the police service had been excluded from such
records. In relation to the applicant the sub-committee stated that
it had carefully considered all the papers relating to him and found
no evidence that would indicate "that the officers concerned carried
out their duties in other than a caring manner". There were various
aspects of the applicant's treatment which might cause concern, but
the sub-committee recommended that, subject to the restrictions set
out above, the records should be made available to the applicant who
should be entitled to take copies if he so wished. This resolution
was approved by the Social Services Committee of the local authority
on 30 June 1982, with one amendment to the effect that when a request
is received from an appropriate person for the disclosure of all the
information kept on the personal file relating to that individual, the
Director of Social Services should be instructed to request all
members of the medical profession and the police service for their
permission to disclose information and reports which they have
submitted to that particular file.
30. Mr. J.H. Lea, a councillor of the local authority, who was
also a member of the sub-committee, dissented from the sub-committee's
resolution of 17 June 1982. He sought and obtained the consent of the
Attorney General to bring a relator action in which he applied ex
parte for a declaration and an injunction to prevent the proposals of
the sub-committee set out in the resolution of 30 June 1982 from being
adopted. On 26 July 1982 Balcombe J. ordered that the local authority
be restrained from disclosing to any person records maintained by it
relating to the welfare of children under the Boarding-Out of Children
Regulations 1955, or the Adoption Agencies Regulations 1976, or
otherwise, except as permitted by these Regulations and except for the
purpose of enabling the local authority to carry out its statutory
duties, until the trial of the action or until further order.
31. The local authority passed a resolution on 28 July 1982
instructing its officers not to implement the resolution of
30 June 1982 until the proceedings brought by Mr. Lea were determined
or withdrawn.
32. On 26 January 1983 the local authority approved a further
resolution of the sub-committee relating to access to personal social
services records. This resolution reiterated the general terms of the
earlier resolution of 30 June 1982, added certain further restrictions
upon the disclosure of information to clients of the Social Services
Department, and resolved that such information should, subject to the
restrictions, be shown to those clients on their request after
1 March 1983. As regards the applicant, it was resolved to contact
the various suppliers of the information contained in the file with a
view to disclosure. The local authority's officers were instructed
not to implement this resolution until the action brought by Mr. Lea
was withdrawn. This action was in fact discontinued on 13 May 1983.
33. On 29 June 1983 the local authority confirmed a further
resolution to the effect that the resolution of 26 January 1983 would
be implemented as from 1 September 1983.
34. On 26 August 1983 proceedings were instituted by the
Attorney General in the High Court for leave to apply for judicial
review of the resolution of 26 January 1983 as amended by that of
29 June 1983 to allow disclosure of, and access to, social work
records on the grounds that the resolution was, and that the
implementation of the resolution by the local authority would be,
contrary to law and/or outside the legal powers of the local
authority. On 31 August 1983 leave was granted to the Attorney
General to seek a declaration and an injunction restraining the local
authority from carrying into effect the resolution of 26 January 1983
as amended.
35. The local authority confirmed a further resolution on
9 November 1983 setting out further grounds upon which certain
information could be withheld from a client requesting it, and
providing for suitable training programmes for staff to enable them
properly to carry out the policy of making the records available to
clients. The resolution was not to be implemented until the action by
the Attorney General was withdrawn or otherwise disposed of.
36. The resolution provided that the applicant's file should be
made available to him if the contributors to the file 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 the Attorney
General withdrew the proceedings.
37. On 23 May 1986 certain documents in the file were forwarded to
the applicant's representatives. These were documents in respect of
which the contributors had consented to their disclosure to the
applicant.
38. According to the information submitted by the respondent
Government and not disputed by the applicant, the file contains (inter
alia) basic factual information concerning the applicant's early
childhood and background. It is still intact as a whole, relating to
the whole period which the applicant spent in care. The file
currently serves no operational purpose and would normally have been
destroyed in 1980, three years after the applicant's majority. It was
retained while the litigation and other proceedings in the United
Kingdom relating to it were conducted and is currently maintained in
the light of the proceedings before the Commission.
39. Apart from the erroneous access given to the applicant in
October 1978 the only persons with access to the file are councillors
of the local authority who have investigated his complaints.
40. The documents made available to the applicant's representatives
on 23 May 1986 resulted from consultations with the contributors to
the file. Seventeen consented to their contributions being disclosed;
their contributions covered the whole period during which the
applicant was in care. The size of each contribution disclosed varied
from one letter to numerous letters and reports. The respondent
Government have stated that if consent is given by other contributors,
further parts of the file will be disclosed to the applicant.
41. Those contributors who have not consented to disclosure have
not been asked to give reasons by the local authority, but many have
in fact done so. These reasons have included that third parties are
involved whose interests could be prejudiced; that the contribution is
valueless out of context, was regarded as subject to professional
confidence at the time made and that confidence should not be breached
in retrospect; that solicitors acting for the contributor wish to be
assured that disclosure will not take place; (in the case of an
institution) that it is not the practice to disclose reports to
clients, but they are willing to provide reports to employers if it
will help to get a job or place on a training course; that the
contributor is in ill-health, now unable to recall details if
cross-examined, and to give evidence would be harmful and stressful
to the contributor if he were now required to disclose; that the
contributor has been advised by his solicitors that the documents
remain confidential.
42. The applicant's representatives have submitted a letter of
15 July 1986 from the Director of Social Services of the local
authority referring to the question of releasing further contributions
from the file 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."
III. SUBMISSIONS OF THE PARTIES
1. The applicant
a) Introduction
43. The applicant complains that he cannot have full access to the
case file held by the Social Services Department of the local
authority which relates to the period which he spent in care. He
seeks access to the file in order to show how badly treated he was,
how poor the system was and to enable him to establish his
background. He seeks access to the file to enable him to seek
treatment for the psychological problems which he argues stem from his
treatment while in the care of the local authority.
44. The applicant contends that the file represented the only
coherent record of his childhood and adolescence. His remaining
family members, with whom his contact was interrupted by his period in
care, would not be able to provide the information in question since
he was neither in their care, nor in contact with them at the relevant
time. He contends that the denial of his access to the whole file in
these circumstances is in breach of his right to respect for his
private and family life protected by Article 8 of the Convention and
contrary to his right to receive information protected by Article 10
of the Convention.
b) Article 8
45. The applicant contends that the treatment received by him
whilst he was in the care of the local authority violated Article 8 in
two ways. Firstly, his private life and his home were not respected
while he was in care, and secondly the severe psychological damage
suffered by the applicant whilst in the care of the local authority
continues adversely to affect his private and family life. The
refusal to make the records available to the applicant means that he
cannot seek medical help for these psychological problems. Moreover,
the purpose of the records (that of making decisions concerning the
applicant while he was in care) has ceased.
46. If a child were being cared for by his natural parents the
treatment which he received from them would be open to scrutiny by the
courts. The Government contend that the local authority seeks to
mirror the functions of natural parents in respect of a child in its
care. It should therefore be accountable in the same way in which a
natural parent is accountable. A natural parent would have to release
any relevant documents and a local authority should be required to do
likewise. A child in the care of a local authority should not be in a
worse position than a child in the care of his natural parents.
c) Article 10
47. The present position in English law is that a local authority
is entitled to refuse to release records relating to a child's period
in its care regardless of whether the child has been maltreated and
whether or not he or she is still in the local authority's care.
48. The applicant submits that none of the exceptions contained in
Article 10 para. 2 are referable to the present facts. The English
courts refused to deal with the case on its merits and simply applied
a blanket privilege.
49. As regards the Government's claim that the refusal to hand
over the records was justifiable as being "for the protection of the
reputation or rights of others", the records were compiled by persons
acting under a professional duty and being remunerated for their
efforts.
50. If the persons responsible for making decisions which are
recorded in the file have been negligent then they have been in breach
of the implied terms of their contract of employment with the local
authority to exercise reasonable care and skill. The local authority
owes a duty of care to the applicant and if its servants and/or agents
have been negligent in this case then the local authority is
vicariously liable for the acts or omissions of such people.
51. The applicant also denies that the Government may justify the
refusal to hand over the records as "preventing the disclosure of
information received in confidence". The applicant considers that
most of the information contained in the records cannot be said to be
confidential since it would have been supplied and recorded even had
it been known that it might subsequently be disclosed. There is in
any event no reason why persons acting in a professional capacity
should not be subject to scrutiny in order to ensure that the service
they provide is of a standard which a democratic society is entitled
to expect.
d) The present usefulness of the file
52. The applicant wishes to have his file and its provision may be
beneficial to him. The applicant has contended that he was maltreated
whilst in care and this has reflected upon the local authority. The
local authority apparently contends that it found "no evidence which
would indicate that the officers concerned carried out their duties
in other than a caring manner". If the local authority and the
Government are satisfied that they were not at fault in this
particular case then why are they not prepared to allow the records to
be made available to public scrutiny rather than allowing the present
situation of serious allegations and concern to persist? If such a
situation is not justified, would it not be in the local authority's
interest to "clear its name" or, if mistakes have been made, for those
mistakes to be highlighted and the appropriate remedial steps made
known in order that public confidence could be restored? One of the
letters in the papers which have been disclosed to the applicant's
representatives is a letter dated 21 January 1975 (i.e. written at the
time when the applicant was in care) in which somebody called Fred B.
says "I have every sympathy with this case as I know that (the
applicant) has engraved his name in the annals of the local
authority's Social Services for a long time to come". If there is
complete disclosure matters might be resolved, whereas if disclosure
does not take place there will be a shadow over the local authority
and the applicant will be aggrieved. Cogent and compelling reasons
for disclosure exist notwithstanding any objections thereto.
e) Are the contributors to the file entitled
to object to disclosure?
53. The reasons why the contributors object to disclosure have
been indicated by the respondent Government (summarised at para. 41
supra). The following observations are made on each of the reasons
given:
54. That third parties are involved whose interests could be
prejudiced. This reason is so wide that it would prevent any
records being disclosed. Who is to decide whether the third party
(i.e. not the contributor) might be prejudiced? What interest of the
third party would have to be prejudiced to justify non-disclosure?
Should the third party be contacted to see whether he or she is
prepared to consent to disclosure?
55. The records which have already been disclosed make reference
to third parties e.g. relatives of the applicant. Is a distinction to
be drawn between the contributor who is prepared to disclose what he
has written or said about the applicant involving third parties (over
which the third parties will have no control) and a contributor who
puts forward the protection of third party interest for good, bad or
indifferent reasons to avoid making disclosure?
56. That the contribution is valueless out of context. The
applicant and his professional medical advisers need to know the
complete picture. If only some of the relevant information is
available because the contributor of vital information refuses to
allow it to be disclosed, this could be damaging to the applicant.
57. That the contribution was regarded as subject to
professional confidence at the time made and that confidence should
not be breached in retrospect. Whose "professional confidence" is
being referred to? Is it not the case that the documents compiled by
"professionals" would have been compiled whatever the position
relating to disclosure was? Why should a professional be immune from
having his professional judgment open to scrutiny?
58. That solicitors acting for the contributor wish to be
assured that disclosure will not take place. Is this a reason for
non-disclosure? Would not any lawyer advise a client to refuse to
disclose documents which might be damaging to that client if they had
the option not to disclose documents? Why should a contributor be
allowed to prejudice the applicant by refusing disclosure without good
reason?
59. That it is not the practice to disclose reports to clients,
but they are willing to disclose reports to employers if it will help
to get a job or place on a training course. Whatever the usual
"practice" is it does not appear to be relevant. The institution
concerned is prepared to release documents in principle and,
therefore, the facts relating to this application are such that
release should take place as this will be for the benefit of the
applicant.
60. That the contributor is in ill health, now unable to recall
details if cross examined and to give evidence would be harmful and
stressful to the contributor if he were now required to disclose.
What proceedings does this contributor fear and why? What realistic
prospect is there of proceedings now being brought in connection with
these matters? Has the contributor considered the turmoil of the
applicant? The applicant might be helped by the disclosure of the
records without prejudicing the contributor whose fear of proceedings
might be alleviated if appropriate.
61. That the provider of information has the right, at his
discretion, to release the information provided. The applicant's
life is in turmoil. His plight could be assisted by disclosure. It
surely cannot be in order for somebody to refuse to disclose documents
for bad or indifferent reasons. What good reasons are there for
refusing to disclose the documents? As has been stated does, or
should, confidentiality apply to professionals compiling records in
the course of their work? There is a distinction between confidential
information in the sense that it is not normally disclosed, and
confidential information in the sense that it would not have been
obtained were it not for the guarantee of confidentiality. In the
case of professional social workers employed by the local authority
they would have provided the information in any event as it was their
professional duty to do so.
f) The practice and law of other members of the Council of Europe
62. The applicant's representatives also refer to the comparative
information which the Government have obtained relating to the
practice in other Member States of the Council of Europe concerning
access to files on persons in care. They contend that this reveals
that Denmark, France, the Federal Republic of Germany, Greece, Italy,
Liechtenstein and Sweden all appear to allow a right of access. The
replies of Liechtenstein and France (and possibly Italy) may be
regarded as indicating that in those countries access is unrestricted,
regardless of whether information has been supplied in "confidence".
Access to the records appears possible in other Member States (i.e.
Austria, Belgium, Ireland, the Netherlands, Norway and Portugal).
63. The respondent Government's original position was not to allow
access to any records on the broad ground that the proper functioning
of the Social Services provided by local authorities would be
prejudiced by such release. Such a position does not appear to be
supported by the practice of the majority of Member States of the
Council of Europe.
2. The Government
a) Domestic law and practice
64. Every local authority is required by Section 2 (1) of the
Social Services Act 1970 to establish a Social Services Committee
which will deal with all matters referred to the authority under that
Act. The local authority received the applicant into care pursuant to
the relevant provision then in force, Section 1 of the Children Act
1948 ("the 1948 Act"), which provided as follows:-
"1.-(1) Where it appears to a local authority with respect
to a child in their area appearing to them to be under the
age of seventeen -
(a) that he has neither parent nor guardian or has been
and remains abandoned by his parents or guardian or is lost;
or
(b) that his parent or guardian are, for the time being
or permanently, prevented by reason of mental or bodily
disease or infirmity or other incapacity or any other
circumstances from providing for his proper accommodation,
maintenance and upbringing; and
(c) in either case, that the intervention of the local
authority under this Section is necessary in the interests
of the welfare of the child, it shall be the duty of the
local authority to receive the child into their care under
this Section.
(2) Where a local authority have received a child into
their care under this Section, it shall, subject to the
provisions of this Part of this Act, be their duty to keep
the child in their care so long as the welfare of the child
appears to them to require it and the child has not attained
the age of eighteen."
65. The local authority discharged its duty to provide
accommodation and maintenance (pursuant to Section 13 (1) of the 1948
Act) for the applicant by boarding him out to various people. It is
the practice of local authorities to keep a case record in respect of
every child in care. In respect of children boarded out local
authorities are under a statutory duty to keep case records by virtue
of the Boarding-Out of Children Regulations 1955 ("the 1955
Regulations"). Regulation 10 (1) of those regulations provides that:
"(1)A local authority shall compile a case record in
respect of
(a) every child boarded out by them;
(b) every child boarded out by another local authority
in respect of whom they perform any of the supervisory
duties under Regulation 13 of these Regulations; and
(c) every child boarded out by a voluntary organisation
in relation to whom they perform the supervisory duties;
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."
66. The Government refer to the case of In re D. (Infants) (1970)
1 WLR 599, where the Court of Appeal held that case records compiled
and kept by a local authority pursuant to Regulation 10 of the 1955
Regulations were private, confidential and privileged documents and,
since the case records should be a full and frank record, public
policy also required that such documents be privileged. The Government
also make reference to the case of D. v. National Society for the
Prevention of Cruelty to Children (1978) AC 171, in which Lord
Edmund-Davies formulated the propositions governing the disclosure of
documents which were relied upon by the judge at first instance in the
present case.
67. The Government point out that on 24 August 1983 the Department
of Health and Social Security issued a circular addressed to local
authorities and health authorities setting out the general principles
governing the disclosure of information in social services case
records to persons who were the subject of the records. The circular
also gave guidance on the policy and procedures to be followed by
local authorities.
68. The applicant's application for pre-action discovery of his
records was made pursuant to the power contained in Section 31 of the
1970 Act. This provision has since been replaced by the Supreme Court
Act 1981 which is in wider terms but still limited to the release of
documents for the purposes of litigation.
b) Article 8
69. The Government point out that no question of interference with
the family life or home of the applicant arises. As regards the
alleged failure to respect the private life of the applicant, the
Government submit that the compilation of the file by the local
authority was, on the contrary, the means adopted by the local
authority of ensuring, so far as it could, respect for the private
life of the applicant as a child in its care, by seeking and recording
information and reports on his development and welfare. By this means
the local authority sought to mirror, to the extent possible, the
experience of natural parents.
70. The Government claim moreover that the file as such does not
form a part of the applicant's private life. It is information
compiled for and by the authority and any complaint relating to
non-disclosure therefore falls to be considered, if at all, under
Article 10 rather than Article 8 of the Convention.
71. As for the right of respect for correspondence, the Government
refer to the Golder and De Wilde, Ooms and Versyp cases (Eur. Court
H.R., Golder judgment of 21 February 1975, Series A no. 18; Eur. Court
H.R., De Wilde, Ooms and Versyp judgment of 18 June 1975, Series A
no. 12) and Malone v. the United Kingdom (No. 8691/79, Comm. Report
17.12.82). They submit that the present case is quite different,
concerning access to a case record compiled by a local authority which
is in no sense "correspondence" of the applicant. Indeed, insofar as
the file contains correspondence from third parties, disclosure of
this to the applicant might well be an unjustified interference with
the rights of those third parties to respect for their correspondence.
72. The Government accordingly submit that the compilation of a
case record and access thereto do not fall within the scope of Article
8, and that this part of the application falls to be rejected as
incompatible with the Convention ratione materiae or alternatively
reveals no breach.
c) Article 10
73. The Government submit that there has been no interference with
any right conferred by para. 1 of Article 10. The applicant did in
fact have access to his file for a period of three days and during
that period would have had an opportunity to seek advice from a
solicitor concerning the possibility of making a claim against the
local authority in respect of the way in which he was treated while he
was in its care, that being the purpose of his application to the High
Court under Section 31 of the 1970 Act.
74. If the alleged refusal of the local authority to allow the
applicant access to the file which it held did constitute an
interference by a public authority with the exercise of the
applicant's freedom to receive information, the Government submit that
such interference is justified within the terms of Article 10 para. 2.
75. The Government refer to the case-law of the Court as reflected
by the Sunday Times case (Eur. Court H.R., Sunday Times judgment of
26 April 1979, Series A no. 30). They submit that in the statutes
cited by them, in particular the Boarding-Out of Children Regulations
1955, and in the case-law, in particular the judgments of the Court of
Appeal in In re D (Infants) and in Gaskin v. Liverpool City Council
(the applicant's case before the domestic courts), the law is set out
with sufficient precision and the two requirements of accessibility
and foreseeability necessary in relation to the phrase "prescribed by
law" in Article 10 para. 2 are satisfied. The Government contend
therefore that the judgments of the domestic courts at first instance
and on appeal in the action brought by the applicant applied to his
case existing principles of law.
76. The Government submit that there are two grounds set out in
Article 10 para. 2 which are relevant to this case. The first is "the
protection of the reputation or rights of others", which, the
Government contend, includes the protection against legal proceedings
of persons who, in the course of their duties, have made reports which
contain confidential information. The case record relating to a child
in the care of a local authority includes reports upon the child by
medical practitioners and various other categories of people, and such
reports contain not only their own observations and opinions but may
also contain records of conversations and confidential communications
which might give rise to legal proceedings against any of those
persons if disclosed without their authority.
77. The second ground is "preventing the disclosure of information
received in confidence", and the Government refer to the judgment at
first instance in the domestic proceedings in this regard. The judge
stated that in order that case records might be of maximum value they
must be as full and frank as possible, and that this goal could not be
achieved if the confidentiality of the records was not guaranteed.
78. The Government submit further that the interference was
"necessary" within the meaning of Article 10 para. 2. Following the
judgment of the Court in the Handyside case (Eur. Court H.R.,
Handyside judgment of 7 November 1976, Series A no. 24). The
Government submit that, for the reasons set out in the judgment at
first instance, the preservation of the confidentiality of child care
records and of the persons who have contributed to those records does
represent a "pressing social need" and the restrictions on access to
child care records imposed by law is proportionate to that aim.
79. The Government refer to a circular issued by the Department of
Health and Social Security LAC(83)14 dated 24 August 1983 which gives
general guidance to local authorities on the disclosure of information
in social services records to persons who are the subject of the
records. The general policy set out in the circular is that persons
receiving personal social services should, subject to adequate
safeguards, be able to discover what is said about them in social
services records subject to a number of exceptions.
80. The Government submit that the policy set out in that circular
complies with Article 10 of the Convention. They further submit that
the policy of the local authority as set out in their resolution of
9 November 1983 also complies with Article 10 para. 2.
d) Law and practice in other Member States of the Council of
Europe in relation to access to the files on persons
formerly in care
81. The respondent Government have submitted a comparative survey
of the law and practice in other Member States of the Council of
Europe concerning access to the files on persons formerly in care.
From this material it appears that there is a right of access to a
file of this kind for the data subject in Denmark, France, Italy,
Liechtenstein and Sweden. In addition, in the Federal Republic of
Germany, such a right exists for the purposes of litigation and in
Greece the practice is to allow unhindered access, although there is
no legal provision giving a right. By contrast, in Austria, Belgium,
Cyprus, Iceland, Luxembourg, the Netherlands, Portugal, Spain and
Switzerland there is no access as of right and there is a varying
degree of regulation of the purposes for which access may be granted.
In Belgium, a lawyer acting for a person formerly in care has
unrestricted access to the file. In Norway there is no right of
access to the whole file, but only to factual aspects of it, provided
that there are no grounds relating to the health of the data subject
or the latter's relations with persons close to him or her which would
militate against disclosure. In Ireland and Malta it is the practice
to provide necessary information derived from the files to interested
parties.
82. The fact that material has been submitted in confidence is, or
may be, relevant as a reason to refuse access in all those countries
where there is no right of access except Norway. In a number of
countries (e.g. the Netherlands, Iceland and Ireland) access to
material submitted in confidence may nevertheless be ordered by the
courts. In Cyprus and Spain the file can, in exceptional
circumstances, be shown to the judge where litigation is in progress.
IV. OPINION OF THE COMMISSION
A. Points at issue
83. The points at issue in the present case are:
- whether the procedures and decisions which resulted in the
refusal to allow the applicant access to the file relating to his
period in care violated his right to respect for his private life,
protected by Article 8 (Art. 8) of the Convention, and
- whether the refusal to allow the applicant access to the
file relating to his period in care violated his right to receive
information, protected by Article 10 (Art. 10) of the Convention.
B. Is the refusal of access to the file an interference with the
applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention?
84. The Commission must first consider whether the refusal of the
applicant's access to the file is an interference with his right to
respect for his private life as protected by Article 8 (Art. 8) of the
Convention before considering whether any such interference may be justified
under Article 8 para. 2 (Art. 8-2) thereof. Article 8 (Art. 8) provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
85. The Commission recalls the Court's interpretation of the concept of
'respect for private life' under the terms of Article 8 para. 1 (Art. 8-1) of
the Convention in the Leander case (judgment of 26 March 1987, Series A no. 116
para. 48).
The Court held that:
"[T]he secret police register contained information
relating to Mr. Leander's private life. Both the storing
and release of such information, which were coupled with
a refusal to allow Mr. Leander an opportunity to refute it,
amounted to an interference with his right to respect for
private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention."
86. In its Report under Article 31 (Art. 31) of the Convention the
Commission considered that the nature of the information held in the
register was the determining factor as to whether an interference with Mr.
Leander's rights under Article 8 para. 1 (Art. 8-1) arose (No. 9248/81, Comm.
Report 17.5.85, para. 56).
87. In the present case the Commission notes that the applicant
wishes to have access to a file of a different nature from that in the
Leander case, namely the whole file relating to his period in care.
It is established that such a file exists and is retained by the local
authority. It apparently contains the records of where the applicant
lived from time to time when in care together with a large variety of
other material submitted by a number of contributors concerning the
applicant's health, education, criminal record and, generally, his
past. During the applicant's minority while he was in care, it seems
that the file was available to be referred to and contributed to by
all those who were involved in the applicant's care and upbringing.
In this respect the file provided a substitute record for the memories
and experience of the parents of a child who is not in care.
88. According to the respondent Government, since the applicant's
majority the file has no operational or practical purpose to fulfil.
It is currently retained only as a result of the proceedings pending
before the Commission and the previous proceedings in the United
Kingdom; in normal circumstances it would have been destroyed some
three years after the applicant's majority.
89. The applicant's complaint to the Commission is presented
against the background of the severe psychological problems from which
it seems he now suffers and which he ascribes to the way in which he
was treated while in care, especially during his tender years. He
states that he wants access to the file in order to be able to address
these problems and to establish his own identity. Respect for private
life requires that everyone should be able to establish details of
their identity as individual human beings and that in principle they
should not be obstructed by the authorities from obtaining such very
basic information without specific justification.
90. An individual's entitlement to such information relating to
his or her basic identity and early life is not only of importance
because of its formative implications for his or her personality. It
is also, by virtue of the individual's age and condition at the
relevant time, information which relates to a period when the
individual was particularly vulnerable as a young child and in respect
of which personal memories cannot provide a reliable or adequate
source of information.
91. In the present case the applicant was taken into care at a
very young age and subsequently had very little contact with his
natural family, or continuity of care from a substitute family. He
does not appear to have established emotional bonding with any
of those who cared for him from time to time. In these circumstances
the file compiled and maintained by the local authority provides the
only coherent record of the applicant's early childhood and formative
years. Hence the Commission finds that the refusal to allow the
applicant access to the file is an interference with his right to
respect for his private life which falls to be justified under the
terms of Article 8 para. 2 (Art. 8-2) of the Convention.
C. Is the interference justified under Article 8 para. 2
(Art. 8-2) of the Convention?
a) In accordance with the law
92. In order to determine whether or not it is justified under
Article 8 para. 2 (Art. 8-2) of the Convention, the Commission must first
consider whether the interference with the applicant's right to
respect for his private life is in accordance with the law. This
requires first that the measures concerned must be in conformity with
domestic law and secondly that the law itself does not fail to show
respect for the individual's private life.
93. The refusal of access to the file arose first in the context
of the applicant's action for discovery with a view to instituting
litigation against the local authority, which implicitly established
that the applicant had no right of access to the file under domestic
law in the absence either of a specific claim, such as under the 1970
Act, or a specific decision of the local authority granting access.
The applicant's claim of access to the file which is the subject of
the present application concerns the procedures and decisions which
have resulted from his requests to the local authority for access to
the file since the rejection of his application under the 1970 Act by
the courts.
94. The local authority has considered the question of the
applicant's access to the file from time to time. These
considerations have given rise to litigation as to the scope of the
local authority's power to release the file or certain parts of it,
which ultimately resulted in the local authority's resolution of 9
November 1983 (paras. 35 and 36 supra). In view of these proceedings
and the relevant resolutions it appears that the refusal to the
applicant of access to those parts of the file which have not been
revealed to him hitherto is in accordance with English law.
95. The Commission's case-law also shows that an additional
element which is needed to satisfy this requirement is that the
domestic law must reflect the principles of the rule of law and must
itself "show respect for" private life (No. 9261/81, Dec. 3.3.82,
DR 28, p. 177 at 183; No. 5029/71, Comm. Rep. 9.3.77, para. 63,
Eur. Court H.R. Malone Case, judgment of 2 August 1984, Series A
vol. 82, para. 68; and No. 10461/83, Comm. Rep. 14.10.87, paras.
99-102).
96. The Commission notes in this respect that the relevant
provisions of domestic law provide the framework which regulates the
applicant's opportunity to have access to the file, including access
to material concerning his early life and background. Subject to the
consent of the contributors to the file, the applicant may have access
to it. The applicant's access to the file is not therefore prevented
in principle, or on the basis of an arbitrary criterion which would
result in the legal restrictions on access to the file failing in
themselves to show respect for the applicant's private life. It
remains for the Commission to examine whether the procedures and
decisions which applied in the applicant's case can be considered as
necessary in a democratic society for an aim recognised as legitimate
in Article 8 para. 2 (Art. 8-2).
b) Legitimate aim
97. The respondent Government have referred to the need to
maintain and respect the confidentiality of the material contributed
to the file. They contend that confidentiality must be ensured in
order that contributors are frank and the file is as accurate as
possible. The Commission considers that such an aim is directed at
ensuring the overriding goal of the file, namely that it be of maximum
usefulness to those caring for the individual in care. This aim is
clearly a legitimate one in protecting the health and wellbeing of the
data subject. In a wider context it must also be recognised that the
file provided an important aspect of the operation of the system of
caring for children whose parents were unable, or unwilling, to look
after them adequately or at all. To the extent that the
confidentiality of the contents of the file contributed to the
operation of the system of local authority care, it also protects the
rights of other children in need of care. The respect for
confidentiality also serves the aim of protecting the contributors
from unwarranted criticism and attack in the light of their
contributions to the file or the care which they have provided.
There are a variety of contributors to the file, apart from those
public employees who were directly responsible for the applicant's
care. They included, amongst others, private individuals such as
foster parents and doctors whose rights may be considered as separate
from those of the authorities. In these various respects, in the words of
Article 8 para. 2 (Art. 8-2), the confidentiality of the file therefore serves
the purposes of protecting the rights and freedoms of others.
c) Necessity in a democratic society
98. It follows that the Commission must consider whether the
refusal of the applicant's access to the part of the file relating to
his basic identity and early childhood was necessary in a democratic
society. This involves assessing whether the procedures and decisions
which resulted in the refusal of access were proportionate
interferences with his right to respect for his family life. The
Commission considers that one aspect of the protection afforded by Article 8
(Art. 8) in these circumstances is that the procedures applied to the question
of the applicant's access to the file must show respect for his private life.
99. In the present case the requirement of proportionality demands
that the interests of confidentiality must be weighed against the
interests of the applicant, once no longer in care, in having access
to the source of information which the file represents. Only thus can
the particular interest which the applicant has in information
relating to his early childhood be satisfactorily compared with any
compelling reason recognised as legitimate by Article 8 para. 2 (Art. 8-2) for
withholding access (mutatis mutandis No. 9749/82, Comm. Rep. 15.10.85,
para. 100). In order for it to be shown that the interference with the
applicant's right to respect for his private life was necessary, it
must be established that the question of the applicant's access to the
file was approached by balancing the applicant's right of access and
the claim of confidentiality which is the reason why the material has
not been disclosed to him. This approach is furthermore confirmed by
the law and practice of the majority of the Member States of the
Council of Europe, where an individual in the applicant's position
would normally either have access to the file as of right, or the
opportunity to challenge and test the refusal of access to the file.
100. The Commission notes that the applicant's claim is to see the
whole file; he contends that he can only come to terms with his
present situation if he has a complete view of his past. The
Commission has recognised special reasons of an objective nature which
give force to the applicant's claim of access to those parts of the
file relating to his early years which are most relevant to
establishing his personal identity. The applicant objects to the
refusal of his access on the ground of the confidential nature of the
material because no examination of the merits of the refusal to
release the file despite such claims appears to have been carried out.
In particular, it is clear that a major reason for confidentiality of
the file during the applicant's minority was to safeguard his
interests. Although this reason may well subsist vis-à-vis
third parties after the applicant's majority, his own claim to have
access to the file must be viewed in a different light after his
majority than it would have been during the period spent as a minor in
the local authority's care. Certain information, such as psychiatric
assessments, may still be regarded as carrying a special claim to
confidentiality. However, with the passage of years and the
applicant's maturity, the claim to keep the file relating to his early
years and background confidential from him as the data subject is not
self-evidently well-founded.
101. The Commission notes in this respect that, under the local
authority's current policy, the contributors to the file have been
asked whether they consent to the applicant having access to the
file. Seventeen contributors have consented, but others have not.
It is unclear what proportion of the material in the file has been
released, but it seems likely in view of the period concerned that
there are considerably more than seventeen contributors in all to the
file. The contributors who have declined to permit access to the file
have not been asked for their reasons. Some have nevertheless given
reasons, relating mainly to the confidential nature of the material
when it was originally contributed, and to the protection of
contributors, inter alia from possible involvement in litigation.
102. None of the reasons advanced suggests that it might not be in
the applicant's interests to have access to any particular
contribution. Faced with these refusals from contributors, whether
reasoned or not, the local authority appears not to be able under
English law to consider or weigh the applicant's interest in access to
the file against the various refusals. It is notable in this
connection that to a certain extent the High Court considered matters
in this light in the context of the applicant's intended litigation.
It concluded that confidentiality of the records, and the safeguarding
of the care system which this represented, overrode the applicant's
interest in discovery for that purpose, but did not examine the file
itself even where proposed litigation was at stake. Nevertheless, the
applicant's continuing request for access has not been made in the
context of possible litigation, but on a basis more directly connected
with the applicant's unusual and unsettled childhood and history in
care. In respect of this request, the applicant has not had access to
a court or other independent procedure to enable his request to be
tested in respect of each of the various entries in the file where
consent is not forthcoming.
103. In these circumstances the Commission finds that the absence
of any procedure to balance the applicant's interest in access
to the file against the claim to confidentiality by certain
contributors, and the consequential automatic preference given
to the contributors' interests over those of the applicant, is
disproportionate to the aim pursued and cannot be said to be necessary
in a democratic society.
D. Conclusion
104. The Commission concludes, by six votes to six¹, with a
casting vote by the Acting President, that there has been a violation
of Article 8 (Art. 8) of the Convention by the procedures and decisions which
resulted in the refusal to allow the applicant access to the file.
E. Does the refusal of access to the file violate
Article 10 (Art. 10) of the Convention?
105. The Commission must further consider whether the refusal of
access to the file constituted an interference with the applicant's
rights under Article 10 (Art. 10) of the Convention, which reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
__________
¹ The votes were cast pursuant to Rule 18 paras. 1 and 3 of the
Rules of Procedure.
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
106. The Commission notes that the freedom to hold opinions and to
impart information and ideas is not an issue in the present case. The
only question under Article 10 (Art. 10) is whether the applicant's right to
receive information has been violated as a result of the refusal to
give him access to the file of the local authority.
107. In the Leander case, the European Court of Human Rights stated
as follows:
"The Court observes that the right to freedom to receive
information basically prohibits a Government from restricting
a person from receiving information that others wish or may
be willing to impart to him. Article 10 (Art. 10) does not, in
circumstances such as those of the present case, confer on
the individual a right of access to the register containing
information on his personal situation, nor does it embody
an obligation on the Government to impart such information
to the individual."(Eur. Court H.R., judgment 26.3.87,
Series A no. 116, para. 74).
108. The Commission considers that the same reasoning is applicable
in the present case. Consequently, Article 10 (Art. 10) does not, in the
circumstances of the case, give the applicant a right to obtain,
against the will of the local authority, access to the file held by
that authority.
F. Conclusion
109. The Commission concludes, by eleven votes to none with one
abstention, that there has been no violation of Article 10 (Art. 10) of the
Convention by the refusal to allow the applicant access to the file.
G. Recapitulation
110. - (a) The Commission concludes, by six votes to six, with a
casting vote by the Acting President, that there has been a violation
of Article 8 (Art. 8) of the Convention by the procedures and decisions which
resulted in the refusal to allow the applicant access to the file
(para. 104).
- (b) The Commission concludes, by eleven votes to none with
one abstention, that there has been no violation of Article 10 (Art. 10) of the
Convention by the refusal to allow the applicant access to the file
(para. 109).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
Partly dissenting opinion of MM. G. Jörundsson, A.S. Gözübüyük,
A. Weitzel, H. Danelius and Sir Basil Hall
We do not share the opinion that Article 8 has been violated
in the present case. Our reasons are as follows.
It is true that in the Leander case the European Court of
Human Rights considered that both the storing and the release of
personal information, which were coupled with a refusal to allow the
applicant in that case an opportunity to refute it, amounted to an
interference with his right to respect for his private life as
guaranteed by Article 8 para. 1 of the Convention (Eur. Court H.R.,
judgment 26.3.87, Series A no. 116, para. 48).
However, the storing of the information is not an issue in the
present case. The actual compilation of the material about the
applicant took place in the period 1959-1977, while the applicant was
in care. The applicant does not complain of the fact that the social
authorities kept a file about him at that time. We further note that
the file would normally have been destroyed a few years later, and
that the only reason why the file still exists is that the applicant
has brought the present proceedings before the Commission regarding
his right to have access to the file.
As regards the use made of the personal information contained
in the file, we further note an essential difference between the
Leander case and the present case. In the Leander case the personal
information on the file was the basis for decisions which Mr. Leander
complained were detrimental to him, while in the present case no use
at all is currently made of the file in relation to the applicant or
any other person.
What the applicant complains of is therefore neither the
storing nor the release of personal information, but only the refusal
to give him access to such information.
In this regard we first note that those persons who in the
past contributed to the file apparently did so on the understanding
that the information which they provided would remain confidential.
We further note that the contributors to the file have been asked
whether they consented to the release of their contributions to the
file and that, insofar as their answers were affirmative, the
applicant has been given copies of the relevant documents on the
file.
However, the applicant is not satisfied with the information
he has got but insists on having access to the whole file. He has not
contended that he requires any specific information about his
background or upbringing. Nor has he explained why the information
which has so far been made available is inadequate or insufficient.
In considering whether there could be any breach of Article 8
of the Convention in the present case, we attach special importance to
the following facts, namely that
(a) the personal information in the file has in no way
been used to the detriment of the applicant,
(b) the authorities have made material from the file
available to the applicant insofar as the contributors to the file
have consented to the release of the information concerned, and
(c) the applicant has not specified on what matters or on
what periods of his childhood or adolescence he would require further
information so as to make it possible for the authorities to examine
whether particular information could be made available to him in one
form or another.
In these circumstances, we consider that the refusal to allow
the applicant access to the file in its entirety cannot be regarded as
an interference with his right to respect for his private life within
the meaning of Article 8 para. 1 of the Convention.
Partly dissenting opinion of Mr. H.G. Schermers
Like the majority I am of the opinion that the refusal of
access to the file is an interference with the applicant's rights
under Article 8 para. 1 of the Convention. I support the reasoning in
paras. 84-91, though I agree with the minority that not too much
weight should be attached to the precedent of the Leander case in
which the facts differed fundamentally from the present one. Unlike
the majority I consider that the interference is justified under
Article 8 para. 2.
Most dissenting members consider that Article 8 para. 1 is not
applicable at all. This leads to the conclusion that persons who have
been under care never have a fundamental right to claim access to
their own file, in any case not if they cannot clearly indicate that
they require particular information. I think that approach is wrong.
The file composed during the youth of the child in care is so closely
linked to his person and is so important to him as a replacement of
his parents' memory that it should be available to him in principle.
The principle that a person has the right to consult files
about his own person is not without exceptions. There may be documents
of a secret nature in the file. But any interference with this
principle must be based on Article 8 para. 2. In the present case
such a basis can be found. I support the reasoning of the majority in
paras. 92-97 but come to another conclusion with respect to
proportionality. In my opinion the interference is in accordance with
the law and necessary in a democratic society for the protection of
morals and for the protection of the rights of others. Much of the
information collected in the file was given on the understanding that
the file would remain confidential. Later the contributors have been
asked to consent to the release of their contributions. Only when
such consent was not obtained was the file withheld from the
applicant. It is a moral obligation of the Government to protect
information which was given under a clear condition of
confidentiality. It is also in the interest of future children in
care that all necessary information is made available. If in the
present case confidential information is passed on to those concerned
without the approval of the persons who gave the information, then
such persons may in future refuse to give information. This risk is
even greater if persons like the applicant use the information for
bringing suits for liability. Confidentiality in these cases is
necessary in order to ensure that all information is given. It is
therefore justified under Article 8 para. 2.
APPENDIX I
History of the proceedings
Item Date
__________________________________________________________________
Examination of the admissibility
Introduction of the application 17 February 1983
Registration of the application 13 June 1983
Commission's first examination of
the admissibility of the application
and decision to communicate the
application to the respondent Government
and invite them, pursuant to Rule 42
para. 2 (b) of the Rules of Procedure,
to submit written observations on its
admissibility and merits 4 July 1984
Observations of the respondent
Government 17 December 1984
Observations of the applicant in reply 22 April 1985
Commission's deliberations and decision
to invite the parties to make oral
submissions on admissibility and merits
pursuant to Rule 42 para. 3 (b) of the
Rules of Procedure 8 July 1985
Hearing of the parties pursuant to
Rule 42 para. 3 (b) of the Rules of
Procedure 23 January 1986
Deliberations and decision on
admissibility 23 January 1986
Examination of the merits
Commission's first deliberations on
the merits; respondent Government
invited to submit information pursuant
to Rule 45 para. 2 of the Rules of
Procedure 23 January 1986
Commission's decision on admissibility
despatched to the parties 25 March 1986
Information submitted by the respondent
Government 18 June 1986
Applicant's comments in reply 28 July 1986
Commission's second deliberations
on the merits and decision to invite the
parties to submit such further
observations on the merits as they
may wish 13 October 1986
Respondent Government informed the
Commission that they did not propose
to lodge any further submissions 2 December 1986
Applicant's representatives informed the
Commission that they did not propose to
lodge any further submissions 31 January 1987
Commission's further deliberations
on the merits 7 March 1987
Commission's further deliberations
on the merits 11 July 1987
Commission's further deliberations
on the merits and vote 10 November 1987
Adoption of the present Report 13 November 1987