RIGHT OF GUARDIAN AD LITEM TO HAVE ACCESS TO LOCAL AUTHORITY RECORDS (Hansard, 23 October 1989)

§ The Solicitor-General
I beg to move, That the clause be read a Second time.
This new clause will allow a guardian ad litem appointed under this Bill access to local authority records relating to the child with whom the guardian is concerned. The clause will apply to records held by the local authority which were compiled for the purposes of making an application under the Bill, or in connection with any function which is referred to the local authority's social services committee. These functions are set out in the first schedule to the Local Authority Social Services Act 1970, and include the care, treatment and supervision of children and young people through the court process, and the supervision of a child subject to a court order in matrimonial proceedings.
632 If a guardian ad litem is to protect a child's interests when that child is subject to an application by a local authority, and if the guardian is to advise the court fully on that application, he must have access to the information held by the local authority when making decisions about that child's future. There are two reasons why this must be achieved by giving the guardian a specific right to inspect the local authority's records. First, we cannot rely upon procedural devices which will insist that local authorities give advance disclosure of their case, as that would make available only information upon which the local authority has chosen to rely. The guardian must also have access to information which the local authority does not rely on. In other words, the guardian must be entirely free to decide what information is relevant to his or her report.
Secondly, we cannot achieve the desired results by making local authorities open to everyone involved in a case because parts of the records are protected by privilege, which is necessary if the authorities themselves are to continue to perform their social work functions. For example, local authorities can protect their sources of information, which might otherwise be lost to them if that protection were removed. The contents of local authority records should not, therefore, be made generally available, but they should be made available to guardians ad litem. I have no doubt that hon. Members will appreciate the importance of the new clause and I commend it to the House.

§ Mr. Tom Clarke
The Solicitor-General has outlined the role of guardians ad litem in respect of local authorities. He said that it might be necessary for them to have access to local authority records at times so that they could feel free to proceed with their duties. The House will follow the thinking behind the Solicitor-General's remarks. However, for guardians ad litem adequately to discharge their duties, it may be that information from other public bodies is necessary. Does the Solicitor-General have in mind to consult the National Society for the Prevention of Cruelty to Children, for example? Clearly, its involvement with many aspects of this legislation becomes important. Will the Solicitor-General consider, as a next step, whether its records should also be available, in specific cases, to the guardians ad litem?

§ Mr. McCartney
It is late, but the new clause is important. Many of the problems that arise in relation to child care orders and in courts determining the long-term future of children placed in care relate to judgments of information received and disseminated, whether that judgment is a value or subjective judgment and whether the sources of information have been dubious in the first instance.
When I and other hon. Members have dealt with cases in which there has been a serious miscarriage of justice about parental rights when a child has been taken into care, either in the initial stages or later in a magistrates court, much of the discussion thereafter has been about the ability of independent sources to consider and disseminate the information being prepared by the local authority in determination of the case.
Some months ago, just before the summer recess, we had a debate in the House late in the evening about access to information on social services' files and this debate follows on from that. I am one of those who are concerned that on occasions information on those files is misused, or 633 that information cannot be used adequately to protect the child or to give adequate information to the court to determine the long-term relationship between the child and the family, whether the parents only or the wider family.
I welcome the opportunity provided by the new clause to discuss the general question of access to information. My hon. Friend the Member for Monklands, West (Mr. Clarke) rightly raised the question of access to information other than that controlled by the local authority. We should also consider access between local authority departments. The development of information between local authority departments is not always clear and local authorities sometimes prevent significant information passing between departments. There are cases where a local authority has parental care over a child, but where the child's education is provided in a special establishment outside the direct control of that local authority. I know of instances in which information gathered between the two authorities has not been of a quality to make possible adequate decisions about the long-term care of a child.
I want to outline a case with which I was involved a few years ago. In that case the information was unreliable and no independent source was able to check it in the subsequent court proceedings and a disastrous chain of events unfolded.
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I will not identify the real names of the individuals concerned and will refer instead to the girl whom I will call Carol and her baby Louise. As a result of the inability of an independent source to check the quality of information provided by the social services to the courts or to have access to information during the proceedings, a chain of events occurred which caused the family to be separated. However, at the end of the day they were reunited.
Carol was visited by a health visitor and confided in the woman that she had a new boyfriend called Nicky. Unknown to Carol, the health visitor already knew Nicky who had suffered from a mental illness. The health visitor reported her concerns to a male social worker. Within 24 hours he called on Carol and asked her to sever the relationship with Nicky. At that stage Carol did not know what had been said between the health visitor and the social worker. She told the social worker that, at that stage, she was unwilling to sever the relationship, but she would consider it in view of what the social worker had said to her. She was revisited 24 hours later and decided to maintain her previous decision not to sever the relationship at that stage.
The following day, without consultation with Carol, her child was removed from the local authority nursery. The local authority report concluded: There is no evidence at this stage of any form of abuse either in the home or the nursery. Carol was immediately refused access to Louise and the magistrates confirmed the order at a subsequent court hearing.
Three months later Louise was put out for long-term foster and subsequently Christmas cards and presents for the baby were returned. A notice was sent to Carol stating that she would not be able to send birthday cards or correspond with the child in any way. At this stage, the mother was distraught at the circumstances and, despite 634 my efforts and subsequently those of solicitors, we could not find any independent sources of information to determine the way in which the decision was taken. Six months later the local authority applied to allow the long-term foster parents to retain baby Louise on the grounds that her relationship with her mother had completely broken down and no bonding existed.
The bonding had broken down precisely because the social services department had acted to effectively break off the relationship between mother and child. At no stage was any independent review taken of how the local authority had made its decision. No one could challenge the decision or ask for a review to determine what other information—if any—the local authority had gathered to reach its original conclusion.
Eventually, the foster parents applied to the authority to adopt. Subsequently the foster mother became pregnant and the foster arrangement broke down. Louise was placed in a children's home and then sent out to short-term fostering. After two years of negotiations between the local authority and the solicitors—instigated at my intervention —the baby was eventually returned to her mother. During that time the mother's relationship with Nicky proved to be stable—she married him and a baby sister was born to the family. At no stage during that traumatic two-year period could anyone intervene effectively to prevent that miscarriage of justice.
I welcome the new clause. If such a clause had existed in the interim, the independent guardian ad litem would have been able to intervene to assess the information provided by the local authority and the actions that were taken based on that information, and then properly represent the child.
I have met representatives of several self-help organisations throughout the United Kingdom. The case that I mentioned is not isolated. All too often decisions are taken by social workers not because they wish to act aggressively to families but because of pressure on them to try to protect children. They operate on the basis that they should act now rather than be sorry if an event takes place later. In many instances social workers work under pressure because of lack of resourcing for care teams in certain areas or because of general departmental underfunding. When protecting a child from any possible abuse we must determine whether abuse is likely to take place and not abuse that child's right to remain with its parents at that stage.
The new clause gives an opportunity also to protect children from abuses of authority when there are no grounds for children to be taken from their parents. There could be effective intervention by examining local authority records and determining whether there was sufficient reason to take certain action.
I hope that the case that I have outlined will be a matter of the past. Luckily, the family whom I mentioned have been brought together. There are many instances in which families are broken up and never brought together, with tragic consequences for mothers and children.

§ The Solicitor-General
I am grateful to the hon. Member for Makerfield (Mr. McCartney). His wide experience and the instances that he has mentioned help to illustrate the great variety of cases in which the Bill and this new clause might become relevant.
I shall answer the personal question raised by the hon. Member for Monklands, West (Mr. Clarke) about 635 circumstances in which the records of not a local authority but of some other responsible body—for example, the NSPCC—might need to be sought. When we adopted new clause 23 we gave an opportunity to give power for rules on access to documents to be furnished. The NSPCC, as an authorised person within the meaning of clause 28(9), could be required to provide access to such documents as the hon. Gentleman had in mind. I hope that is of assistance. I commend the new clause to the House.