Refusal to destroy part of a ‘life story’ justified under Article 8(2) ECHR

The High Court of Justice (Northern Ireland) has today given judgment In the matter of JR60’s application for judicial review [2013] NIQB 93. The applicant sought to challenge the right of the two Social Care Trusts to keep and use various records generated when she was a resident of children’s homes and a training school between the years 1978-1991.

In most cases of challenges to the retention of records, the applicant seeks to expunge information which suggests they have done wrong. This application is interesting because it focused (though not exclusively) on what the applicant had suffered, as opposed to what she had done. In short, she wished to erase from the record a part of her life story which was painful for her to recall. The application failed: there were weightier reasons for retaining those records, and in any event whatever her current wish to forget matters of such import, she might come to change her mind.

The applicant was described as having had a very difficult childhood, to which those records relate. It was not known who her father was. She had grown up to achieve impressive qualifications. Horner J described her as having “survived the most adverse conditions imaginable and triumphed through the force of her will. By any objective measurement she is a success”.

She wished to move on, and to have the records about her childhood expunged. The Trusts refused; their policy was to retain such information for a 75-year period. The applicant challenged this refusal on Article 8 ECHR grounds. Horner J readily agreed that the retention of such information interfered with her rights under Article 8, but dismissed her application on the grounds that the interference was justified.

The applicant had argued that (i) she did not intend to make any claim for ill-treatment or abuse while she was in care, (ii) she did not want to retrieve information about her life story, (iii) she did not want the records to be used to carry out checks on her, as persons who were not in care would not be burdened by such records in respect of their early lives, and (iv) she did not want others, including her own child, to be able to access these records.

In response to the applicant’s assertion that she did not want and did not envisage wanting access to her records, Horner J said this at paragraph 19:

“Even if the applicant does not want to know at present what is in her records, it does not follow that she may not want to find out in the future what they contain for all sorts of reasons. She may, following the birth of a grandchild, be interested in her personal history for that grandchild’s sake. She may want to find out about her genetic inheritance because she may discover, for example, that she, or her off-spring, is genetically predisposed to a certain illness whether mental or physical. She may want to know whether or not this has been passed down through her mother’s side or her father’s side. There may be other reasons about which it is unnecessary to speculate that will make her want to seek out her lost siblings. There are any number of reasons why she may change her mind in the future about accessing her care records. Of course, if the records are destroyed then the opportunity to consider them is lost forever.”

The Trusts argued that they needed to retain such records for the purposes of their own accountability, any background checks on the applicant or related individuals which may become necessary, for the purposes of (hypothetical) public interest issues such as inquiries, and for responding to subject access requests under the Data Protection Act 1998. Horner J observed that the “right for an individual to be able to establish details of his or her identity applies not just to the Looked After Child but also, inter alia, to that child’s offspring”.

In the circumstances, the application failed; the Trusts’ interference with the applicant’s Article 8 rights was justified.

Horner J added a short concluding observation about the DPA (paragraph 29):

“It is significant that no challenge has been made to the Trust’s storage of personal information of the applicant on the basis that such storage constitutes a breach of the Data Protection Act 1998. This act strengthens the safeguards under the 1984 Act which it replaced. The Act protects “personal data which is data relating to a living individual who can be identified from data whether taken alone or read with other information which is the possession (or is likely to come into possession) of the data controller: see 12-63 of Clayton and Tomlinson on The Law of Human Rights (2nd Edition). It will be noted that “personal” has been interpreted as almost meaning the same as “private”: see Durant v Financial Services Authority [2004] FSR 28 at paragraph [4].”

Robin Hopkins