The draft guidance for ‘ContactPoint’ (aka the children’s information-sharing index) has been published, so no doubt the regulations will appear soon. Just to clarify: the guidance covers the procedures for operating the database – it’s separate from the regulations that will actually bring the database into being.
The government appears to have dropped the ‘flags of concern’ idea altogether, and now says:
3.28 Where your involvement is separately recorded on a child record, this indicates to other users that you are taking some form of action with a child and that you may have important information to share.
Thank God for small mercies.
There is still considerable confusion around the issue of consent to put details of a ‘sensitive’ service on the child’s record (sensitive = sexual health, mental health or substance abuse services). The draft guidance says:
informed and explicit consent must always be sought. It must be sought from the child where they are judged to have sufficient understanding to give or withhold their consent. Where the child does not have sufficient understanding, consent should be sought from their parent/carer.
Exactly what the legal basis is for this instruction isn’t clear. The common law position is that parents have responsibility for their U16 children, with an exception provided by the settled law of the Gillick case in 1985. In the FIPR report to the Information Commissioner last November, we expressed our concern about:
a rather cavalier interpretation of data protection law and privacy law by a number of the agencies involved in building the network of children’s databases. For example, the Gillick precedent (confirmed recently in the Axon case) establishes that a child’s parents should normally be involved in matters of consent, but that, exceptionally, the child may exercise the consent function to the exclusion of the parent if he or she insists on it and has the maturity to understand the consequences. This has been routinely turned into a principle that anyone over 13 can consent to sharing sensitive personal information without the involvement of their parents.
We also reiterated the rules set out by Lord Fraser in that judgment (now called ‘The Fraser Guidelines’) – which included the active refusal of a child to involve his/her parents – and quoted his warning that:
That result ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.
By making the default position one of seeking only the child’s consent, the government is encouraging agencies to manoeuvre themselves between parents and children (“don’t worry about your stuffy old parents – we’ll leave them out of this”) which undermines the insistence of all of the human rights instruments on the importance of the family, and the Article 5 UNCRC right of children to seek guidance from their parents. It’s not exactly conducive to promoting the respect for parents repeatedly demanded by the UNCRC, either.
We’ll be looking at all of this in more detail over the next few weeks. In the meantime, all comments and suggestions – especially on the plans for security and the audit trail – are welcome.
A couple of things worth mentioning. Home educators who are still sighing with relief over yesterday’s news might want to look at this bit:
3.64 If you work in the LA team responsible for identifying children not receiving education you may access a report which lists the records of all children known to ContactPoint in your area who do not have an educational setting recorded on their ContactPoint record.
And ironically, Victoria Climbie, who was used as the poster-child for this whole initiative, probably wouldn’t have figured on ‘ContactPoint’ at all:
A child record should not be created for a child who is resident outside of England but who accesses services in England.