Lexploria

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

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GASKIN v. THE UNITED KINGDOM

GASKIN v. THE UNITED KINGDOM

LEXI