THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39393/98
by M. G.
against the United Kingdom
The European Court of Human Rights, sitting on 3 July 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 8 August 1997 and registered on 16 January 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, M. G., is a British national, born in 1960 and living in Leicester. The respondent Government are represented by Ms Ruma Mandal, Agent, Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the eldest of three children (two boys and a girl). He was in voluntary care with the social services’ department of the local authority for five periods during his childhood: 8 September – 6 November 1961, 15 February - 20 July 1962, 26 October and 23 December 1962, 4 April 1963 - 4 April 1966 and 16 January - 8 April 1967.
During these periods his mother was receiving periodic psychiatric treatment and his father had some difficulty coping with the children on his own. The applicant had regular contact with both parents while in care: there was regular contact each week and weekend during the second period of care, there were visits over every weekend and then fortnightly weekend visits by the end of the fourth (and longest) period, and those fortnightly weekend visits continued during the fifth period of care. It is not known how much parental contact there was during the first and third periods of care.
By letter dated 10 April 1995, the applicant requested access to his social services’ records. By letters dated 5 and 9 June 1995, he requested specific information including whether he had ever been on the risk register, whether his father had been investigated or convicted of crimes against children and about the responsibility of the local authority for the abuse he had suffered as a child.
On 13 June 1995 a social worker discussed with the applicant the access procedures and the information sought. On 27 June 1995 that social worker went through background information gleaned from the file with the applicant (concerning the dates and places of care) and provided him with hand-written notes of that information.
On 22 August 1995 the same social worker provided the applicant with further information gleaned from the file in the form of typed notes (covering September 1961 to March 1966). She also discussed certain areas of particular concern to the applicant including the impact of childhood neglect and ill-treatment which he remembered at the hands of his father, his feelings about having had a violent father and his vague suspicions of having been abused while in local authority institutional care. They also discussed the allegations of ill-treatment of the applicant by his father which had been made by neighbours via the school to the local authority in November 1966 and the consequent investigation and decisions made by the local authority. The social worker also provided the applicant with various documents including letters from his father to social services dated August 1962 to February 1967, social services’ progress reports dated November 1961 and April 1963, medical treatment permission forms signed by his father between September 1961 and February 1962, child care agreements with his father dated September 1961 to April 1963, a medical report card dated January 1967 and a copy of his birth certificate. He was also given a report of a Child Care Officer dated 16 March 1997 (which was prepared for a case conference to be held on 17 March 1967) together with notes of that case conference. The latter report provided further detail of the allegations of ill-treatment of November 1966, of the consequent investigation and of the recommendations of the Child Care Officer.
By letter dated 18 September 1995, the social worker wrote to the applicant with more typed information taken from his file. That note dealt with the period April 1966-September 1976. It included brief references to the applicant returning home in April 1967, to the family’s move in October 1975 and to a supervision order made in respect of the applicant by a juvenile court in August 1976. She also gave the applicant a typed note recording the information which had been given orally to him during their last meeting, which note included further details of the period 1961-1963.
By letter dated 12 June 1996 to the local authority, the applicant’s legal representatives noted that the applicant had been provided with summary information and certain documents only. They requested that he be allowed full access to his file. The local authority responded by letter dated 25 June 1996, pointing out that his social services’ records had been created prior to the entry into force of the Access to Personal Files Act 1987.
Further to the applicant’s queries, the local authority confirmed by letter dated 12 July 1996 that there were no detailed records relating to him after 1967 except an indication of juvenile offending. It also noted that there was little mention of ill-treatment but it enclosed the above-mentioned report of the Child Care Officer dated 16 March 1967. That letter accepted that the attitude expressed in that report would not have been acceptable in 1996 given the more developed understanding of child abuse matters.
In his letter of 21 January 1997, the applicant stated that memories of abuse suffered by him began to return shortly after March 1995 and that he was by then in full possession of his memories, was being counselled and had consulted solicitors about a negligence action against the local authority. He requested specific information about the allegations of ill-treatment made in November 1996 and about his being abused by his father for eight years thereafter. The local authority responded by letter dated 17 February 1997 referring the applicant to the information already provided to him in 1995 and to the differences between social work standards and procedures in 1997 and in the 1960s.
The applicant claims that in 1998 he admitted to his siblings the “incestuous acts” he had committed during his childhood. It also appears that the applicant’s contact with his own daughter is limited.
B. Relevant domestic law and practice
The Court of Appeal in Gaskin v. Liverpool Corporation (1980 1 WLR 1459) held that the High Court, in refusing access to the relevant records, had correctly balanced the public interest in maintaining an efficient child-care system with the individual’s interest in obtaining access to records and that it was not necessary for the court to review the records in question in order to so decide.
In 1983 a binding circular (LAC(83)14) was issued setting out the principles to be applied by local authorities in permitting access to their care records. Access to records was, in principle, to be permitted subject to necessary exceptions (such as the preservation of third party confidences and the protection of sources).
The Access to Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989 both entered into force on 1 April 1989. The Act and the Regulations gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions. A number of exceptions were retained for the preservation of third party confidences and the protection of sources but there was a right of review (and, subsequently, of judicial review) of a refusal of access. The Act and Regulations did not, however, apply to records created before 1 April 1989.
Circular LAC(89)2 was issued to provide guidance to the local authorities on the implementation of the 1987 Act and the 1989 Regulations. The previous circular (LAC(83)14) was cancelled and Paragraph 7 of Appendix 1 to the new circular pointed out that, while there was no obligation to furnish pre-April 1989 information, “there is likely to be significant advantage in authorities making available as much information as possible. This could lead to greater clarity and understanding of an individual’s background.”
On 1 March 2000 the Data Protection Act 1998 (“the 1998 Act”) came into force and repealed the 1987 Act, the 1989 Regulations and circular LAC(89)2. It provided a statutory right of access for a “data subject” to information held about him in care records and other personal files (both manual and electronic) regardless of the date when the information was recorded, together with a right of appeal to the domestic courts or to the Data Protection Commissioner if access were refused or where a contributor or a relevant third party had not consented.
COMPLAINTS
The applicant claims that between 1966 and 1976 he was subjected to physical (including sexual) abuse by his father and that the local authority was negligent in their supervision of him. He also complains about a failure by the local authority to allow him access to his social services’ records. He invokes Article 3 of the Convention.
THE LAW
1. The applicant complains under Article 3 of the Convention that he was abused by his father between 1966 and 1976 and that the local authority was negligent in its supervision of him. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The applicant first wrote to the Court in December 1996. He simply requested information about making an application and about “who is eligible, time limit for application”. Having been sent in January 1997 a copy of the Convention and of the explanatory notice to applicants, he responded by letter dated 8 August 1997 in which he complained about childhood abuse by his father and a lack of full access to his social service records. The Court considers that the application was introduced by his letter of 8 August 1997, this being the first letter in which he outlined the substance of his Convention complaints.
However, the applicant maintains that memories of abuse by his father returned to him shortly after March 1995 (his letter of 21 January 1997). His letters of June 1995 demonstrate a clear belief by him that he had been abused by his father and that the local authority had been negligent in that respect. By September 1995 he had discussed alleged ill-treatment by his father with a local authority social worker, and he had been informed of the concerns expressed to the local authority in late 1966 about his being ill-treated and about the subsequent handling of those allegations by that authority. He had also been provided with the reports and documentation mentioned above, notably the detailed report of a Child Care Officer dated 16 March 1967. In his letter of 21 January 1997, he spoke of abuse by his father in 1966 and for years thereafter, and confirmed that he was then in full possession of his childhood memories, was being counselled and had consulted solicitors about a negligence action against the local authority.
Accordingly, on the applicant’s own submissions, his memories of abuse began returning after March 1995, and by at least 21 January 1997 he firmly believed that his father had abused him as a child in 1966 and for years thereafter, and that the local authority had been negligent in that respect. Accordingly, and even assuming that he had no effective domestic remedy to exhaust, the six-month time-limit ran, at the very latest, from 21 January 1997 (no. 23413/94, Decision of 28 November 1995, L.C.B v. the United Kingdom, Decisions and Reports (DR) 83-A, p. 31, at p. 43, and Z and Others v. the United Kingdom [GC], no. 29292/95, § 111, 10 May 2001).
Since that date of knowledge is six months before the applicant introduced his complaints to the former Commission in August 1997, it follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant also complains about a lack of unimpeded access to his social service records held by the local authority and he again invokes Article 3 of the Convention. However, the Court considers that his complaints about the lack of full access to those records fails to disclose treatment of such a nature or degree as to render it either inhuman or degrading within the meaning of Article 3 of the Convention (Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).
However, the Court recalls that it has considered the question of access by an individual to his childhood social services’ records under Article 8 of the Convention (Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, §§ 34-49). It will therefore examine this complaint under Article 8 of the Convention, which Article, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private … life, ….
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 …, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government point out that the applicant had prompt, comprehensive and satisfactory access to his social service records in 1995 in accordance with LAC(89)2 which was the best practice at that time. In addition, the Government provided, with their observations to the Court, what they describe as a full copy of his social service records, the only exceptions being certain documents (not disclosed) and certain information (masked from the documents disclosed), the disclosure of which would have breached a duty of confidence owed to third parties (in particular, to the applicant’s siblings). The first entry in the copy documents disclosed is dated September 1961 and the last copy document disclosed is a letter dated March 1967. The Government point out that there is no other document referring to the applicant between 1967 and 1976 apart from one irrelevant file note, and that there were no allegations of abuse made to the local authority during that later period.
According to the Government, the Gaskin case is distinguishable because it is irrelevant that the present applicant had no appeal to an independent authority against any refusal to disclose given that the present applicant had comprehensive disclosure in 1995. In so far as it is considered that there was a failure to disclose certain records to which the applicant was entitled, the Government refer to the appeals now possible under the 1998 Act since its entry into force on 1 March 2000.
The applicant points out that he has not yet received all of his social service records and refers, in particular, to the period of April 1967 to 1976 for which he has not received any records whatsoever. He argues that one of the main reasons he sought access to his records was his belief that he had been physically abused when he was a child by his father, and his consequent need to obtain all relevant information about his childhood in order to come to terms with the emotional and psychological impact of such abuse, and to understand his own subsequent and related behaviour. He therefore maintains that the failure to allow him unimpeded access to all social service records relating to him during those periods constitutes a violation of his rights guaranteed by the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under Article 8 the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints about inadequate disclosure by the local authority of his social service records;
Declares inadmissible the remainder of the application.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy