JOINT DISSENTING OPINION OF JUDGES RYSSDAL, CREMONA , GÖLCÜKLÜ, MATSCHER AND SIR VINCENT EVANS

1.   We accept the finding of the majority of the Court that the records contained in the local authority ’ s file relate to Mr Gaskin ’ s private and family life in such a way that the question of his access thereto raises an issue under Article 8 (art. 8) of the Convention. We do not, however, agree that a violation of Article 8 (art. 8) has been established in this case.

2.   The confidential nature of the case records compiled under Regulation 10 of the Boarding-Out of Children Regulations 1955 at the time when Mr Gaskin was in care has been clearly affirmed by the English courts, particularly in the case of Re D. (Infants) [1970] 1 WLR 599, which was followed by the decisions of the High Court and the Court of Appeal in refusing Mr Gaskin ’ s application for discovery of documents in 1980 (see paragraphs 14 to 18 of the Court ’ s judgment). Boreham J in the High Court, whose finding on this point was accepted by the Court of Appeal, said that he was "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".

3. As both the Commission and the Court have recognised, the confidentiality of the contents of the file had a legitimate aim - or aims. It not only protected the rights of those who had provided information on a confidential basis, but by contributing to the efficient operation of the child-care system it also served to protect the rights of children in need of care.

4. Admittedly a more open policy as regards access to personal files has been followed in other Contracting States and this is now the approach adopted in Great Britain in the Access to Personal Files Act 1987 and Regulations made under it as to information recorded in the future. In our opinion, however, it would be wrong to alter retrospectively the basis on which existing case-records have been compiled. The question of access to them, including access to Mr Gaskin ’ s file, must be considered with proper regard to the conditions of confidentiality under which information was contributed to them.

5. Mr Gaskin claims that his right to respect for his private and family life under Article 8 (art. 8) entitles him to access to the whole of his case-file. In determining whether the respondent Government are under a positive obligation to grant him access, the Court, in accordance with its established case-law, has had regard to the "fair balance that has to be struck between the general interest of the community and the interests of the individual" (see paragraph 42 of the judgment). The Court has also pointed out in its judgment in the case of Abdulaziz , Cabales and Balkandali (Series A no. 94, p. 33, para. 67) that the notion of "respect" is not clear-cut especially as far as positive obligations inherent in Article 8 (art. 8) are concerned and accordingly that this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.

6. It is implicit in the Court ’ s judgment in the present case that it does not accept that the applicant should have access to his entire file irrespective of the confidentiality attaching to its contents, but that access can only be given on a selective basis.

7.   The Government maintain that by writing a letter to each of the contributors to the file seeking his permission to disclose the information that he had contributed and then making available to the applicant documents supplied by persons who gave their consent, the authorities in the United Kingdom have gone as far as they properly could to meet the applicant ’ s request for access. It is the Government ’ s view that it would be entirely improper and a breach of good faith to disclose information supplied in confidence without the consent of the supplier.

8. The Court has taken the view that the final decision whether access should be granted in cases where a contributor fails to answer or withholds consent should be taken by an independent authority (see paragraph 49 of the judgment). Inasmuch as such a system envisages the disclosure of information received in confidence without the contributor ’ s consent, we consider that it is open to serious objection as not fairly and adequately respecting and protecting his position.

9. In our opinion the procedure that has been followed by the United Kingdom authorities for determining what parts of Mr Gaskin ’ s file could be made available to him should be accepted as representing a fair balance of interests in the circumstances.

10. Finally, we do not agree that the payment of non-pecuniary damage is justified in this case. The stress and anxiety which the applicant has no doubt suffered have been occasioned by the refusal to grant him access to his case-file and not to the lack of any review procedure, which may or may not result in the release of further documents to him. This therefore is, in our opinion, a case in which the finding of a breach of Article 8 (art. 8) constitutes adequate just satisfaction for the purpose of Article 50 (art. 50).