Children and Young People Committee
Committee Inquiry into arrangements for the placement of children into care – evidence gathering
Response From Welsh Assembly Government
A 10 year old girl is placed with foster carers. Her mother is HIV positive. Unless the local authority is satisfied that that it is relevant for the foster carers to know that the mother is HIV positive, this information should not be shared.
A 12 year old boy is placed with foster carers. He has disclosed information in confidence to a psychotherapist within therapy sessions. This information would not be shared with foster carers.
An 8 yr old boy is placed with foster carers; mother is separated from father and the care plan is to work towards reunification of mother and child, starting with contact which is to be facilitated with the foster carers; father lives locally and suffers from schizophrenia. He has on occasions failed to take his medication with the result that he has turned up either at mother's home or at social services and is normal one minute then becomes aggressive the next It is likely that it would be necessary to share information that father on occasions presents normally one minute then might without warning become aggressive - but not to share that he is a schizophrenic
same example as (c) above but father is in a psychiatric hospital long term - this might lead to the view that since there is no risk from father turning up at the foster carers, there is no need to tell them about father's behaviour. The alternative view, however, is that it may be necessary for them to know about it to understand the child's experiences of his father, which may in turn impact on the child's behaviour, particularly in relation to the male foster carer - this is a social work question!
In all the above hypothetical examples, if social workers consider that the information needs to be shared under reg 34(3) and Sch 6(1), they would need to consider how they are to comply with Data Protection Act requirements and the common law on confidentiality eg: example (c) - seeking consent of father to disclose information about his aggression - and he may even be content for foster carers to be told that he is schizophrenic; if he refuses to give consent or it is not considered appropriate to seek consent, social workers would need to decide what information it is essential to share to enable the foster carers to provide care (and so to comply with their regulatory duties)
Human Rights
Article 8 of the European Convention on Human Rights, incorporated into English and Welsh law by the Human Rights Act 1998, provides that:
Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of the right except such as 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.
A HRA claim could arise, for example:
from a third party (e.g.: birth mother or sibling) whose information is disclosed unnecessarily
from foster carers whose family life suffers as a result of failures on the part of the local authority to disclose relevant information
from the child if the non disclosure of information to the foster carers leads to break down of e.g. a long term foster placement
However, these suggestions are purely speculative and obviously whether the Human Rights Act is engaged will depend on the facts of each case. What is interesting is that reported cases tend to relate to potential liability in negligence rather than HRA claims - perhaps because negligence claims is proved, lead to monetary damages; this is not necessarily the case in HRA claims - in which the finding of a violation of Convention rights will frequently accord 'just satisfaction'.
Another important human rights perspective to recognise is the likelihood of competing human rights - for example, a local authority's interference with mother’s Article 8 right to respect for her private and family life in disclosing information about her to foster carers vs the child's Article 8 right to respect for his private and family life in the form of the authority making arrangements for his long term care with foster carers.
Further regulatory provisions relevant to information sharing with foster carers It is worth noting the following provisions on confidentiality:
Placement of Children (Wales) Regulations 2007 reg 10(3) -
A responsible authority must secure the safe keeping of case records and must take all necessary steps to ensure that the information contained in them is treated as confidential, subject only to -
(a) any provision of or made under by virtue of, a statute under which access to such records or information may be obtained or given;...'
Fostering Services (Wales) Regulations 2003
Sch 5 (matters and obligations in foster care agreements)
To ensure that any information relating to a child placed with the foster parent, to the child's family or to any other person, which has been given to the foster parent in confidence in connection with the placement is kept confidential and is not disclosed to any person without the consent of the fostering service provider.
Extracts from case law:
LAMBERT V CARDIFF COUNTY COUNCIL PER JUDGE HICKINBOTTOM
[ 2007] EWHC 869
Headnote:
In 1991, the claimants, Roger William Mervyn Lambert and Marjorie Rose Diane Lambert, were approved as foster carers by the predecessor council of the defendant Cardiff County Council. Between 1991 and 1993 a teenage girl, A, was placed with the claimants. At the time of the placement the council were aware of two allegations of sexual abuse which had been made by A against a babysitter and the father of one of her friends. Information concerning the incident with the babysitter was disclosed to the claimants but the other incident was not. The council was also aware, but did not disclose to the claimants, that A had a history of violence towards children. At the end of the placement A made false allegations of sexual misconduct against the first claimant and launched a campaign of harassment against the claimants which caused them both psychiatric injury. The claimants brought an action against the council alleging that the council were responsible for their respective psychiatric conditions. The complainants contended, inter alia: (1) that the council had falsely represented to them that it would indemnify them for all damage (including personal injury) caused by a child in the care of the council and would effect that indemnity by taking out a policy of insurance covering such losses on claimant's part; (2) that the fostering agreement between the themselves and the council had contractual effect and the council were in breach of contract by failing to insure in accordance with the agreed contractual term; and (3) that the council owed them a duty of care (i) to effect insurance that covered them for any personal injury that might be caused to them by any child placed with them, irrespective of when and the circumstances in which such injury might occur and (ii) to provide them with information relating to the history of any particular child placed with them, particularly any past false allegations of sexual abuse.
Held – The claim would be dismissed. (1) On the evidence, the council had not made the representations asserted and, even if they had been made, the representations would not have acted as an inducement for the claimants to enter into the fostering agreement with the defendant council. (2) The relationship between the claimants and the council was not regulated by private law but by the comprehensive statutory scheme of which the fostering agreements formed part. There was therefore no contract or collateral contract between the parties. (3) (i) There was no basis for suggesting that, as a matter of common law, every authority that placed foster children had a duty to insure or indemnify carers against all risks of damage or loss to property, or personal injury arising from placements. In the instant case, the scope of the insurance which the council had agreed to provide was set out in the agreements, which, with the statutory provisions, formed the basis of the relationship between the council and the claimants as foster parents. The suggested duty was inconsistent with the scope of that cover, and there was no good reason why the scope of the cover should be extended; the claimants were aware of the cover to which they had agreed. (ii) The council were in breach of the duty owed to the claimants in failing to give them information about the incident involving the father of one of A's friends and the information relating to A's history of violence towards young children. However, even if the disclosure had been given, the course of events would not have materially changed. Accordingly, the council were not responsible for any of the considerable misfortune and the claim consequently failed.
Extracts from the judgment:
The failure to provide information
[137] In A v Essex CC [2003] EWCA Civ 1848, [2004] 1 FCR 660, an adopted boy caused injury to his family by his bad behaviour. It was alleged
that insufficient information about the boy had been provided by the placing authority to the parents. The Court of Appeal held that (at [50]–[59]):
(i) the authority did not owe a duty in respect of its decision as to the extent of the information which should be given to the parents: but
(ii) a duty was owed to pass on such information as the authority decided should be given to the parents.
[138] The statutory obligations to supply information in cases of adoption and fostering (under either the 1989 Act scheme or its predecessor) are similar and certainly analogous: many of the same policy considerations apply: and in any event the Court of Appeal's reasoning is in line with general principles (see [130] above). For these reasons, I gratefully adopt that reasoning and the distinction drawn in A's case. This duty of care is of course reflected in the terms of the respective statutory schemes (e.g. reg 5(5) of the 1988 regulations, and para 1 of Sch 3 to the 1991 regulations) but it seems to me that it is not dependent upon such provisions. Where an authority places a child with carers, it seems to me that that must require there to be a duty on that authority to give to those carers at least the information the authority considers necessary to enable the carers to care for the child.
[139] In his closing submissions, Mr Stagg properly conceded that 'a decision to disclose information' must include a general decision by an authority as a matter of policy to disclose particular categories of information in every case (even though such a general decision would be reviewable on the facts of any particular case).
[140] Before me, Mr Barnes (the manager of the Community Placement Scheme at the relevant time) said that even in 1991 information concerning (i) sexual abuse suffered or alleged to have been suffered by a child, and (ii) any history of violence by the child towards other children ought to have been disclosed to foster carers in every case. Mr Evans agreed: he said he could not think of any circumstances in which such information ought not to be disclosed. This was effectively the policy of those within the scheme. In the absence of a positive decision by the authority in this case not to disclose such information in A's case, Mr Stagg conceded that this policy amounted to a decision to disclose sufficient for A's case. Again, I consider this concession was quite properly made.
[141] Mr and Mrs Lambert criticise the council for failing to provide them with the following information:
(A) that A was a 'disturbed' child (amended particulars of claim, para 35(a)):
(B) that A had made/was prone to make false allegations of sexual abuse against others (amended particulars of claim, para 35(b)):
(C) that A had a history of violence towards young children (amended particulars of claim, para 35(c): this does not refer to violence, but only 'all relevant information'. The claimants confirmed at trial that the history of violence was the only other information relied upon).
A v ESSEX COUNTY COUNCIL
[2003] EWCA Civ 1848
COURT OF APPEAL
WARD, HALE AND SCOTT BAKER LJJ
Headnote:
The local authority, as the relevant adoption agency, approved the prospective adoptive parents to adopt a child with mild medical conditions, not physically or mentally handicapped, with mild emotional or behavioural handicap, but not needing special education. The local authority decided to link the adoptive parents with a brother and sister whom, the adoption panel had decided, should be placed together for adoption. The local authority had information about the boy's serious behavioural difficulties, including violent behaviour, his need for constant adult supervision, and for child guidance and specialised respite care. The adoptive parents claimed that the local authority did not disclose this information to them and had they known about the severity of the boy's problems they would not have taken the children. During the 14month placement, and subsequent adoption, the boy attacked both parents and their natural child and was diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin. After a period in local authority accommodation, he returned to live with the adoptive parents. The parents claimed damages in respect of the local authority's negligence in not fully informing them of what was known about the boy before placing him with them. The claim included damages for psychiatric illness. The judge held the local authority liable to the parents in negligence for failing to provide them with 'all relevant information' about the two children they were preparing to adopt. The judge held that the local authority was only liable for injury, loss and damage sustained during the placement, but not after the adoption orders were made. The local authority appealed against that holding and the parents appealed against the limitation to their claim.
Held – dismissing the local authority's appeal and the parents' cross-appeal –
(1) Whenever the question of a common law duty of care arises in the context of the statutory functions of a public authority, there are three potential areas of inquiry: first, whether the matter is justifiable or whether the statutory framework intended to leave such decisions to the authorities, subject to the public law supervision of the courts; secondly, whether even if justifiable, it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of that discretion; thirdly, in any event whether it is fair, just and reasonable in all the circumstances to impose such a duty of care (see para [33]).
(2) Adoption agencies are entitled to have policies, or standard practices, about what information will be disclosed to prospective adopters before children are placed with them. It was not for the court to dictate to the agency what the policy should be. An adoption agency has a duty to communicate to the prospective adopters that information which the agency has decided they should have. If an agency decides that the prospective adopters should have the child's Form E and medical report, together with any specific information the agency or adoption panel considers they should have and its staff fail to take reasonable steps to ensure that that information is in fact communicated, in circumstances where it is foreseeable that actionable harm would be caused if it is not, then there should be liability (see paras [47], [50]).
(3) It may be appropriate for an agency to depart from its policy about what information should be passed on to prospective adopters in individual cases, either in withholding information which would otherwise be given, or in divulging information over and above that contained in the various forms and reports disclosed. There is no general duty of care owed by an adoption agency or its staff in relation to deciding what information is to be conveyed to the prospective adopters unless they take a decision which no reasonable agency could take, in which case there could be liability (see paras [58], [59]).
Lord BrowneWilkinson said in X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council and Others; E (A Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v Bromley London Borough Council [1995] 2 AC 633, at 736B:
'It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable at common law. However if the decision is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.'
Extracts from the judgment in Re: A v Essex CC:
[58] The other intermediate question is whether the agency has a duty of care in respect of the decision about what information should be passed on. As already indicated, the agency is entitled and expected to have a policy about this. But clearly it may be appropriate to depart from that policy in individual cases, either in withholding information which would otherwise be given, or in divulging information over and above that contained in the various forms and reports disclosed. That decision might well be made on the advice of the adoption panel. All the same factors which tell against the imposition of a duty of care on the individual professionals apply with equal if not greater force to the agency's decisions.
[59] Hence we would hold that there is in general no duty of care owed by an adoption agency or the staff whom it employs in relation to deciding what information is to be conveyed to prospective adopters. Only if it takes a decision which no reasonable agency could take could there be liability. But once the agency has decided, either in general or in particular, what information should be given, then there is a duty to take reasonable care to ensure that that information is both given and received.
