Retention and accuracy of social services records: a robust decision from Northern Ireland

In a judicial review claim from Northern Ireland, the applicant sought to challenge the contents of her infant son’s social services file, which contained references to ‘confirmed neglect’ by the applicant following a child protection case conference, based on her behaviour during pregnancy. Following an appeal, the record was updated so that the concerns were described as ‘potential neglect’, although the earlier references to ‘confirmed neglect’ were not removed. She challenged this on the basis that it violated her rights under Article 8 ECHR and under the Data Protection Act 2018/GDPR.

Considering Article 8, the court held that it was plain that the records were retained in the public interest and for the provision of health and social care treatment. The real issue was proportionality. The court noted that the records were accurate, inasmuch as it was clear that the ‘confirmed neglect’ categorisation was clearly recorded as having been incorrect and there was no challenge to the ‘potential neglect’ categorisation or the underlying conduct. The records were the child’s, not the mother’s, and any redaction or destruction would impact on the child’s right to have a full history of his social services interactions maintained. There was limited access to the records and it was difficult to see what actual prejudice or harm there would be to the applicant.

On the data protection angle, the court unfortunately applied the data protection principles set out in Part 4 of the DPA, relating to intelligence services processing, rather than the GDPR. But this made no real difference since the principles in play were accuracy and data minimisation, which are not materially different in Part 4 than under the applicable GDPR articles. The court reiterated its analysis of accuracy, finding that to the extent that the records were inaccurate they had been rectified. Retaining the original inaccurate categorisation did not breach the accuracy principle. On data minimisation, the court approved the 75-year retention policy in force, finding that it was justified.

Despite the mis-step on which principles to apply, this is a robust and clear decision on a relatively typical accuracy and retention dispute. It is likely to be helpful to those resisting such claims, especially in relation to social services or health records.

Further reading:

JR188’s application: https://www.bailii.org/nie/cases/NIHC/QB/2022/55.html

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Authors

Aaron Moss

Call 2013

Zander Goss

Call 2017