15
April 04
Eversheds e80
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The e-news service from Eversheds
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The Children's Bill 2004
On the 4th March 2004 the government introduced the Children's
Bill in the
House of Lords, with the aim of improving the coordination and
accountability of all agencies responsible for the wellbeing of children,
(ie those under 18 years). One of the most radical aspects of the bill
are
the information sharing provisions (section 8 for England and section
23 for
Wales) which allow the Secretary of State to establish the first compulsory
national database of children, (most likely a series of interconnected
local
databases operated by 150 local authorities), ensuring that every child
(there are around 11 million) has an electronic record detailing involvement
with social services, health professionals, the police, young offender
teams
and schools. This will facilitate information sharing so that children
at
risk of abuse, neglect, deprivation, offending or poor school performance
can be identified early on.
The bill aims to resolve the legal problems that hindered
earlier efforts to
share information about children. In particular the 10m pound
Identification, Referral and Tracking Initiative (IRT) was dogged by
concerns over confidentiality, privacy and data protection law. Clearly
the
bill will establish "gateways" for data sharing between specified
agencies
satisfying the lawful processing requirement under the Data Protection
Act
1998. However the bill leaves much of the detail to be regulated by the
Secretary of State eg database content, disclosure and access rights and
permits the Secretary to issue guidance or directions on matters such
as
conditions for access, database management, technical specifications,
security and data transfers.
Particular challenges are posed by the third and fourth
principals of the
Data Protection Act, regarding the adequacy (ie the safeguards against
holding excessive data) and accuracy of data. Unless each child's record
is
adequate and relevant for the purposes of child welfare the potential
for
mistaken assumptions and false accusations by professionals may increase
along with the risks of adverse media coverage and even litigation. On
the
other hand storing unnecessary data may breach the individual's rights
of
privacy. Maintaining the accuracy and currency of around 11 million records
is also of critical importance if public confidence is to be maintained
in
the child welfare agencies. With so many points of access to the database
the task will prove difficult and, even with a clear strategy and investment
in staff training and resources, human error remains inevitable.
It also remains to be seen whether parents will have
ready access to their
childrens' records in order to challenge the accuracy and assertions of
child welfare professionals.
Under existing legislation a parent's right to confidentiality
can be
overridden only where there is "significant risk" to a child.
The bill will
change this permitting action where there is "any cause for concern",
raising concerns that this will trigger breaches of article 8 of the Human
Rights Act, the right to respect for private and family life, although
it is
more likely that child welfare will override adult civil liberties in
this
respect. Concerns have also been raised about the vulnerability of a
national database to hacking by paedophiles or abuse by those with ready
access. Appropriate technical and organisational measures will be necessary
(under the seventh principal of the DPA) to prevent the misuse of data.
Ultimately a balance must be struck between the benefits
and uses of data
and the corresponding rights of parents and children, particularly those
at
risk, if confidence is to be maintained in the professionals they trust.
The Bill can be found at:
http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldbills/035/04
035.i-v.html.
Richard Bakewell
Trainee Solicitor
For Eversheds LLP
Tel: +44 (0)113 200 4169 (direct)
Fax: +44 (0)113 245 6188
www.eversheds.com
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