WRITTEN ON October 4th, 2004 BY Terri Dowty AND STORED IN Foundation of Trust, What do we want?

Putting children’s services online raises a number of issues that simply don’t apply to adults, many of them relating to access: who could and who should access a child’s information?

The security of children’s data is paramount for sound child protection reasons.

By reasons of age, immaturity and the predilections of some in our society, children are far more vulnerable than most adults. Corrupt disclosure or unauthorised access to information about a child can compromise her physical safety, the more so if indications of being an ‘easy target’, such as having a history of abuse, can be gleaned from records. Even the mere fact that a child has used mental health services or attended a GUM clinic can put her at enhanced risk.

It is also possible for a child who needs to be hidden to be traced through corrupt disclosure.

This has already happened where, for example, abusive ex-spouses have used local contacts within council departments to find the new address of their family. Some families have had to leave an area and move several times to ensure that they cannot be found. Any national system would make it far easier to trace them.

There are also occasions when it is vital for an adopted or fostered child’s well-being that her natural parents cannot locate her.

Quite apart from child protection considerations, children also have the same ECHR rights as adults, including the Article 8 right to a private life. The Joint Committee on Human Rights has just reminded the Government of this very forcefully in its scrutiny of the Children Bill, which proposed a database of all children, plus widespread information-sharing amongst ‘professionals’, without the knowledge and consent of child or parents.

The JCHR warns that the provisions appear to create a situation where there is “no meaningful content left to a child’s Article 8 right to privacy and confidentiality in their personal information.” Should the Bill go through in its present form, an Article 8 challenge is an absolute certainty.

There are other problems about privacy when one considers the needs of older children. Who should have control of a child’s records? Few would argue that parents should normally deal with information relating to, say, their 5-year-old, but should they automatically have access to their 14-year-old’s file?

It’s important here to understand a fundamental legal principle: currently, an older child can access some services – in particular medical or social services – without parental consent or knowledge if the practitioner believes the child to be ‘Gillick competent’ (after a landmark case of that name). Such competence depends on a practitioner’s reasonable belief that a particular child is sufficiently mature to understand the implications of a particular course of action, but it will vary according to the situation. For example, a child may be able to consent to a course of antibiotics, but not competent to consent to long-term steroid treatment. Moreover, one child may be Gillick competent at 10, while another still isn’t competent at 13. There can be no hard and fast rule. Maturity is seen as ‘gradually evolving capacity’.

Let’s suppose that a Gillick-competent teenager wished to access sexual health or drug treatment advice without her parents’ knowledge. If it is vital that her parents don’t know, could her confidentiality be assured? More, the fear that parents might ‘find out’ could deter a teenager from seeking essential advice in the first place – and our teenage pregnancy, STI and drug abuse rates are already through the roof. But if certain areas of information were suddenly closed off to parents, they might well become suspicious.

Parents cannot be barred altogether from looking at their child’s records. They have parental responsibility until their child is 16, and by no means all decisions are susceptible to the ‘Gillick competence’ test – only some medical and social services decisions. Indeed, it is important on human rights grounds that parents generally do have oversight of their child’s file – the reason why all human rights instruments stress the role of parents is that they stand between the child and the State to prevent ‘arbitrary interference’ or any other breach of her human rights.

Children are not entirely separate from their parents – except sometimes! But that’s where the difficulty lies. Maturity and independence are gradual processes rather than something that happens at the age of 16, and highly individual processes at that. What kind of system could possibly accommodate that?

One final point: it is very important that a child has the chance to re-invent herself when she reaches adulthood, particularly if she has had a troubled and turbulent childhood. Having any kind of centralised record hobbles that opportunity. We all create our own adult identity according to how much reality we can cope with; how many people would really want to be reminded of every last detail of their childhood?

Of course, at least some of the problems and dangers that I’ve outlined above already exist, but any kind of centralised system magnifies them to an unacceptable level. Within ARCH, we simply cannot see a way in which children’s records can be ‘joined up’ safely and with proper respect for children’s human rights.