CONTENTS
1.
Introduction
2.
Impact of Change — Legislation
3.
Impact of Change — LA Reorganisations
4.
Records Requirements — 1955 Regulations
5.
The 1988 Regulations
6.
The 1991 Regulations [Children Act]
7.
Safe & Confidential Archiving
8.
Records held by Care Providers
9.
Records held by Foster Carers
10.
Former Regulations — Accessibility
11.
Further Information & Contacts
APPENDIX A — Extract
1955 Regulations
1.
Introduction
1.1 Few of us depend
upon official records for our identity or history. We may throw
away old papers about ourselves but that is our choice. Unlike
children who have been in public care we do not depend on the
often fragmented and formal records of others. Yet, for many adults,
such information can be critical in fully understanding the past.
What records contain or can be found can be vital. Sadly, previous
retention requirements have not always recognised this aspect.
1.2
The publication of the Waterhouse Report and the existence
of other inquiries into allegations surrounding care in residential
settings also means that it is almost inevitable that most if
not all Directors will receive requests for information or access
to files or registers of children who were within the care system
in the 1960s, 70’s and 80’s. Many such requests relate
to care prior to the current framework on records under the Children
Act, 1989.
1.3
For people who have gone through the painful process of
disclosure to be told their care authority cannot find any trace
of them can be a source of considerable distress. This may lead
to a demand to know “why”. It is the sort of question
that even retired Directors may be called upon to answer. It is
right, therefore, that Directors should be in position to give
clear responses in such situations and to be aware of the different
requirements relating to records.
1.4
This paper aims to help Directors to respond to requests
for information some of which may go back many years and to review
departmental practice. It may also help Directors who have to
make Witness Statements about the records they hold or in relation
to those which cannot be traced. It is not, however, definitive
statement of the law and legal advice should be sought as necessary.
2.
The Impact of change - legislation
2.1
Sometimes, requests for information or records on children
formerly in public care and the responses to them are framed as
if the framework provided by the Children Act, 1989 has always
been in force. This is not the case. As time passes there will
be fewer staff familiar with earlier arrangements. Directors may
find themselves facing a situation where previous responsibilities
and location of records may not be known. Sometimes staff may
not even know, in a physical sense, just what they are looking
for.
2.2
The post war child care scene was dominated by a legislative
framework of which only the Children and Young Persons Act, 1933,
and the Adoption Act, 1976 are the significant survivors today.
The requirements for record keeping and retention were significantly
different from those now in force. They are the key reason why
individual files on many children formerly in the care of local
authorities or the former Approved School system have been destroyed.
2.3
The significance of the Children and Young Persons Act,
1969, is often lost in this context. It can be particularly important
in relation to records and their location. The 1969 Act abolished
the former Approved School system and created a single management
regime of “Community Homes” covered by the Community
Homes Regulations 1972. From 1972 onwards former Approved Schools
became owned, controlled or assisted community homes with management
committees or boards of managers. These changes have particular
significance for the creation and destruction of records and the
responsibilities of local authorities and Directors of Social
Services.
2.4
Access to computer held case files has always been covered
by the Data Protection Act, 1984. The Access to Personal Files
Act, 1987 and the Access to Personal Files [Social Services] Regulations
1989, gave access to individual manual case files. This legislation
and the subsequent regulations applied to case files but did not
cover unstructured records [e.g. day books] at homes.
2.5
The Data Protection Act, 1998, however, sets out a single
comprehensive framework for the management of both computer based
and manual records and subject access to them. The legislation
places no restrictions in terms of retrospection and extends access
to unstructured records of today and the past. In terms of retention
responsibilities, Data Protection Principle five states:
Personal data processed for any purpose
or purposes shall not be kept for longer than it is necessary
for that purpose or purposes”
2.6
Guidance issued by the Department of Health in 1999 outlines
the key statutory requirements. It places responsibility on local
authorities to develop retention policies. Whilst this gives flexibility
it raises some issues about national consistency. ADSS continues
to believe it would be helpful to have agreed national standards
for the archiving and destruction of all social care records.
It remains an issue we must face, not least because legislation
now places a common responsibility on all Directors for safe and
secure retention of records.
2.7
The need for such arrangements is emphasised by a letter
from the Criminal Cases Review Commission in 1999. It said:
“Lastly, it is useful for us to
know the authority’s policy on the retention of case papers
and other materials. ... Armed
with this information, it will be easier for the Commission to
avoid having to ask for papers in cases where it is likely that
materials have quite properly been destroyed”
2.8
The securing, storing and destroying of records is an important
professional issue. All Directors are encouraged, if one is not
in place already, to ensure they have a clear records retention
and destruction policy. This should set out the records, the legislation,
the retention time, the policy, the location and the person responsible
for safekeeping of records. It is strongly recommended that within
every department there is a nominated officer with this responsibility.
3.
The Impact of Change - Local
Authority Reorganisation
3.1
Local Authority reorganisations have been one of the continuing
features of the last 40 years. No part of the country has escaped
and some have been through reorganisations twice. Such change
has had an enormous impact on records.
3.2
In Greater London, the London Government Act of 1963 swept
away existing
County and County Borough Councils with child care responsibilities
and
replaced them with 32 London Boroughs. Outside of London,
County Borough
Councils extended their areas considerably in the period
up to 1958. Between
1958 and 1968 three County Boroughs were created: Luton,
Solihull, Torbay.
3.3
The most important changes outside of London, however,
came in 1974 under the Local Government Act, 1972. All existing
County and County Borough authorities responsible for child care
functions were replaced. Some authorities continued as before,
but three new Counties were created in England [Avon, Humberside
and Cleveland] in place of former County and County Borough Councils.
In Wales the local government scene was transformed in 1974 when
8 County Councils replaced 17 Counties and County Boroughs.
3.4
Lastly, the previous Government commenced the process of
Local Government Review. In Wales, the 8 Counties from 1974 disappeared
and were replaced by 22 new all-purpose “County” authorities
from 1996. Altogether 46 new Unitary Councils were created out
of a number of Counties during the period of Local Government
Review. In England five counties, Avon, Humberside, Cleveland
IOW and Berkshire, disappeared. The process of review ended in
April 1997 when the last of the new unitary authorities came into
being.
3.5
The impact of these changes on historical and more recent
individual records and registers of children cared for may have
been considerable. In some instances it is possible that, depending
on the year involved, requests for information or records may
or may not be being made to the correct authority even if it still
has the same name. It is known that disappearing authorities adopted
a variety of approaches to the archiving and destruction of records.
As time has passed, knowledge of what happened to previous records
has faded and will continue to do so and records will be “lost”
for the future.
3.6
For these reasons it may be helpful for Directors to have
information available to them on what happened to their boundaries
over the last 40 years. This will help ensure requests for information
can be redirected where this is necessary.
3.7
Finally, it is essential that a designated member of staff
also knows where historical registers and any records have been
stored or where such functions may have been undertaken on, for
example, an agency basis by predecessor authorities for a period
of time. Of equal importance is that this information should be
recorded and remembered for the future.
4.
Records Requirements - Boarding
Out of Children Regulations 1955
4.1
These are the key regulations for most older case records
and registers. The requirements were essentially simple and follow
the broad structure of the much earlier Children and Young Persons
[Boarding Out] Rules of 1946.
4.2
These regulations came into force in 1956 and continued
in force until their replacement by the Boarding Out of Children
[Foster Placement] Regulations 1988. [See Section 5] The 1955
regulations covered records relating to:
•
Children boarded out by the local authority under the Children
Act, 1948 and subsequently the Child Care Act 1980;
•
Children subject to Fit person Orders under the Children
& Young Persons Act 1933 until 1972; and,
•
Children subject to Care Orders under the Children &
Young Persons Act, 1969 from 1972 onwards.
4.3
The best account of responsibilities under the 1955 Regulations
is provided by Alan Holden in the ADSS Guide to the Child Care
Act 1980. He makes clear that, apart from Adoption where separate
rules have always applied and records had to be maintained for
75 years, the 1955 Regulations contained the only requirements
for maintaining individual casework records and registers.
4.4
For ease of reference an extract of the relevant regulations
appears as Appendix
A.
The key points to note on case records are:
•
reports are to be made of all visits;
•
complaints are to be recorded;
•
conclusions of reviews are to be recorded; and,
•
case records must be preserved until the person becomes
or would become 21.
4.5
There was also a requirement to keep registers of children
boarded out in a local authority’s area. This register had
to show:
•
particulars of the child on commencement
•
the ending of the placement; and
•
reason for the placement’s termination.
4.6
In terms of record retention, each volume of the register,
which sometimes covered several years, had to be preserved until
five years after every child included in it became 18. This means
that if a three month old baby was in care and boarded out in
1988, for example, that register has to be kept until 2011. It
is important to realise that the regulations provided for the
minimum periods records are to be retained. They do not set out
maximum periods. Directors are encouraged to ensure their departments
retain these records for longer periods.
5.
The Boarding Out of Children (Foster Placement] Regulations
1988
5.1
These regulations replaced those of 1955 [as amended
in 1982] and came into force on 1 June 1989. Their introduction
reflected the changing expectations surrounding placement and
records. Whilst the provisions on the maintenance of registers
were broadly the same, those on individual records and recording
changed considerably. The regulations contained revised provisions
setting out:
•
the content of a case record [Regulation 13]
•
the retention of records [Regulation 15]
5.2
Under these regulations the provisions on record retention
are important. From
1
June 1989 case records have to be retained for 75 years beginning
with the date of birth of the child to whom it relates or, if
the child has died before the age of 18, a period of 15 years
from the date of death.
5.3
Regulation 14 introduced new requirements relating to the
creation and retention of records for foster carers. Regulation
15 required such records to be kept for a period of 10 years from
the date approval was terminated.
5.4
The result is that, for example, if the child described
in Section 4 had continued in placement into 1990 the case file
would have to be kept for 75 years i.e., 2063 and not the shorter
period provided under the 1955 Regulations.
5.5
In the case of registers, the provisions remained essentially
the same as under the 1955 Regulations except that the content
is expanded slightly. The minimum retention period is the same
but provision was made for children who had died.
5.6
The 1988 Regulations were a bridge between the pre-Children
Act arrangements and those we have today. They were replaced by
new regulations made under the Children Act, 1989. These came
into force on 14 October 1991.
6. Records
Requirements - The 1991 Regulations
6.1
The1988 Regulations were revoked by The Foster Placement[Children]
Regulations of 1991. Requirements on records are now to be found
in four sets of closely related Regulations which, in effect,
provide a comprehensive framework for record generation and retention
covering the child, the placement and the provider of care:
•
The Arrangements for Placement of Children [General] Regulations
1991;
•
The Foster Placement [Children] Regulations 1991;
•
Children’s Homes Regulations, 1991; and,
•
Review of Children’s Cases Regulations, 1991.
6.2
The General Regulations apply to all children placed by
local authorities on or after 1 October 1991. They are the regulations
people often have in mind when making requests for information.
Whilst the provisions are very similar to the 1988 Regulations
they are substantially different from the requirements in place
between 1956 and 1989 under the 1955 Regulations.
6.3
The provisions of Regulations 8,9 & 10 have not been
changed since they were made. Whilst very similar to the 1988
Regulations, one change made was to permit the maintenance of
registers in computer form. Copies of the relevant regulations
together with guidance are to be found as follows:
•
Children Act Guidance, Volume 3 - para 2.78 -
2.90 [Guidance]
•
Children Act Guidance, Volume 4 -
para 2.78 -.2.90 [Guidance]
•
Children Act Guidance, Volume 3 -
Regulations 8-10 [pp 125 - 127]
•
Children Act Guidance, Volume 4 -
Regulations 8-10 [pp 157 - 159]
6.4
The key points to note about the regulations in terms of
Care Authority record generation and retention are:-
•
every child to have a separate case record;
•
information on the case record to be shared with the placement;
•
specification of information to be included [Schedule 2];
and,
•
records to be retained for 75 years from birth of the child
or, if less, for fifteen years after the child’s death.
6.5
Regulation 10 continues the requirement for the maintenance
of registers of all children looked after by the care authority.
The wording on retention is different, however, from the 1988
Regulations but the intention is essentially the same.
6.6
The records held by homes and foster carers are also covered
by new regulations with clear requirements for retention of information.
These provisions include a responsibility for the person in charge
of a children’s home to record precisely where the file,
or components of a record have been transferred.
7.
Safe and Confidential Archiving of Registers and Records
7.1
The major issue facing all Directors is how to retain such
records and to ensure their safe and secure storage for the required
periods. There is a major archiving issue here which also has
to be faced in relation to adoption records.
7.2
Some modern techniques for document generation, especially
some early fax transmissions, mean that some records may not remain
legible for that long. In other cases paper and print quality
may mean that original records become fragile or may disintegrate
within a short period of time in the wrong conditions.
7.3
It is strongly recommended that every Director should ensure
the person in their Department exercising the lead role for Data
Protection and Subject Access has prepared an effective action
plan for archiving of records. This should include provision for
secure storage and retrieval of both manual and computer held
information; including, keeping records in a satisfactory state
and condition.
8.
Records on children held by residential care providers
8.1
Between 1956 and 1991 there were few regulatory requirements
relating to records held by residential care providers. These
are to be found in:
•
Administration of Children’s Homes Regulations, 1951
•
Approved School Rules, 1933 [applicable until replaced
in 1972]
•
Community Homes Regulations, 1972
8.2
It was always clear under the 1956 - 1989
boarding out arrangements that documentary information on all
significant matters touching upon the welfare of a child covered
by them should be on the child’s case file held by the care
authority. Approved Schools and their records were covered by
separate arrangements. This is important because it is only after
Approved Schools merged into the Community Homes system that Local
Authorities assumed the role of care authorities as opposed to
any responsibilities they may have had as a care provider under
the Approved School system. Some of these records, therefore,
may still be held by national child care charities or have been
archived by them under local arrangements agreed with Councils.
8.3
Records, but not individual records, were required under
the former Approved School Rules, the Administration of Children’s
Homes Regulations, 1951, and subsequently the Community Homes
Regulations 1972. These records related primarily to the conduct
and the management of the home and included registers of children
and young people admitted to them. All provided for homes to be
subject to monthly visits. There was a requirement to produce
a report in writing. Some of these reports may refer to individual
children but their main purpose was to deal with the conduct of
the home and the care of children within it.
8.4
None of these regulations included a specific requirement
to retain records for any period but the normal practice was to
do so for between 3 and 5 years. In the case of former Approved
Schools and in many local authorities monthly reports were often
submitted to Boards of Managers at their meetings. As such, it
is possible they may have been retained as part of the papers
in official archives of their proceedings. The location and content
of these archives, including those of voluntary organisations,
should be known and recorded.
8.11 The
basic building block for any individual record within the Approved
School system, where they were kept, was invariably the “Assessment
Report” from one of the four main Classifying Schools. The
common practice would have been to destroy such records when the
person to which they referred became 21, sometimes 25, but most
likely three years after discharge.
8.12 Recording
of daily information on individual files was not common practice
although it did grow over time. Most information of this kind
found its way into unstructured records such as House or Unit
day book; with only summary information being included in formal
records or within individual records where they were kept. These
unit records were retained for limited periods. In the absence
of specific requirement it is fairly certain most of the information
within such unstructured records has been destroyed. Only key
events from such day books would find their way into the home’s
Log Book inspected by managers.
8.13 Since
1991 there have been clear requirements on the recording and retention
of information concerning both the operation of Children’s
Homes and individual records within them. These are set out in
the Children’s Homes Regulations 1991. Directors should ensure
periodic audits to check that requirements are being complied
and with and that the location of such records is not only known
but continues to be known and is secure.
9
Records held by Foster Carers
9.1
Part Ill of the 1991 regulations set out the record requirements
for foster carers and children placed with them. There are requirements
on the retention of such records.
9.2
The regulations also make provision for the supply of specified
information to foster carers in respect of children placed with
them. Such information properly remains the property of the care
authority and its issue, return, retention and/or disposal should
be known.
10.
Improving Accessibility to Former Regulations
10.1 Old legislation and regulations
tend to get thrown away. One of the major problems facing
Directors about retrospective requests for information is that
information on former record and recording requirements is not
easily accessible. Improved availability would help those seeking
information to understand the responsibilities of the different
parties involved for creating and retaining records on children
and their placements for much of the period since 1956 until the
new Children Act provisions came into force. If this could be
achieved and made available in the appropriate format it would
be possible for Directors to respond more easily to requests.
It would also save time and remove scope for misunderstanding.
10.2
Finally, knowing about the less demanding requirements
on records of the past, is one thing. It may help explanation
and understanding of why we find ourselves in the position we
are in today. Even so, concern must remain we had regulatory frameworks
that have resulted in the loss of so much information about so
many children over so many years between 1956 and 1989.
10.3
Above all, we must try to learn from the lessons of the
past and ensure these shortcomings are not repeated. We need to
be confident that children in public care today can be sure that
should they wish to know more about their past then it will be
possible to find the records to enable them to do so.
11.
FURTHER INFORMATION & CONTACTS
The
contact person is Michael Hake, Chair ADSS Organisation &
Development Committee.
e-mail adss@solihull.gov.uk telephone 0121-704-6728
OR
Amanda Fry, ADSS
Co-ordinator [e-mail amanda,fry@northyorks.gov.uk telephone
01609 770661]
“9
Reports by Visitors
“Whenever,
in pursuance of these Regulations, a visitor sees a child who
is boarded out, he shall after considering the welfare, health,
conduct and progress of the child and any complaint made by or
concerning him, make a written report about the child, and whenever
a visitor so visits the dwelling of foster parents he shall make
a written report about its condition”
10
Case records to be kept by local authorities and voluntary organisations
“[1] A local authority
shall compile a case record in respect of -[a] every child boarded out by them;
[b]
every child boarded out by another local authority in respect
of who they perform any of the supervisory
duties under regulation 13 of these regulations; and
[ci
every child boarded out by a voluntary organisation in
relation to whom they perform the supervisory duties; and the
said record shall be kept up to date.
[2]
A voluntary organisation shall compile a case record in respect
of every child boarded out by them and the said record
shall be kept up-to-date.
