Chapter Two

Information Sharing

In this section:

Introduction
The legal context
Consent
Information from children
Enquiries/Consultation
Referral
Sharing information when children and young people move
Recording
Disclosure of information in court proceedings
Sharing information about those who may pose a risk to children
Data Protection Act
Problem resolution

Introduction

‘I do not want data protection to be wrongly blamed for preventing sensible information sharing, for example to detect crime, protect children at risk or prevent fraud.’

Richard Thomas, Information Commissioner

2.1 Sharing Information is vital to enable early intervention to ensure that children and young people and families who need additional services to achieve positive outcomes and obtain the services they require. It is essential to protect children and young people from suffering harm from abuse or neglect, to reduce inequalities between disadvantaged children, and to help prevent offending.

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The Legal Context

2.2 There is nothing currently in law that prevents disclosure, which is justified if an individual has particular concerns about the welfare of a child.

2.3 Those giving information should be made aware that any information provided may be used in civil and/or criminal proceedings.

2.4 Further guidance about the legal issues of information sharing is found in the guidance Information Sharing: Further Guidance on Legal Issues

2.5 Every Child Matters’ ‘Information Sharing: Practitioners’ Guide (2006) sets out six key points for practitioners on information sharing as follows:

  • You should explain to children, young people and families at the outset, openly and honestly, what and how information will, or could be shared and why, and seek their agreement. The exception to this is where to do so would put that child, young person or others at increased risk of significant harm or an adult at risk of serious harm, or if it would undermine the prevention, detection or prosecution of a serious crime, (i.e. any crime that causes or is likely to cause significant harm to a child or young person or serious harm to an adult), including where seeking consent might lead to interference with any potential investigation.
  • You must always consider the safety and welfare of a child or young person when making decisions on whether to share information about them. Where there is concern that the child may be suffering or is at risk of suffering significant harm, the child’s safety and welfare must be the overriding consideration.
  • You should, where possible, respect the wishes of children, young people or families who do not consent to share confidential information. You may still share information, if in your judgement on the facts of the case, there is sufficient need to override that lack of consent.
  • You should seek advice where you are in doubt, especially where your doubt relates to a concern about possible significant harm to a child or serious harm to others.
  • You should ensure that the information you share is accurate and up-to-date, necessary for the purpose for which you are sharing it, shared only with those people who need to see it, and shared securely.
  • You should always record the reasons for your decision – whether it is to share the information or not.

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Consent

What constitutes ‘Consent’

2.6 Consent must be ‘informed’ – i.e. the person giving consent needs to understand why information needs to be shared, who will see the information, the purpose of the information being shared and the implications of the sharing that information.

2.7 Consent can be explicit or implicit. Obtaining explicit consent is good practice and if obtained in writing it reduces the scope for subsequent dispute. Implicit consent can also be valid in many circumstances, especially if it has been explained at the outset, e.g. when conducting a common assessment.

2.8 Consent should never be secured through coercion, or inferred from a lack of response to a request for consent.

If consent is refused

2.9 If consent is refused, and it is decided that confidential information is to be shared without consent, it should be explained to the person withholding consent that the information will be shared and the reasons for the decision.

When not to seek consent

2.10 There will be some circumstances where consent should not be sought, e.g. where to do so would:

  • Place a child or young person at increased risk of significant harm; or
  • Place an adult (including themselves or another professional) at risk of serious harm; or
  • Prejudice the prevention or detection of a serious crime; or
  • Lead to unjustified delay in making enquiries about allegations of serious harm

2.11 Decisions about the need to share information, the need to seek permission, and when to override refused permission, are required at all stages of childcare work, but especially at initial contact and assessment. It is essential that all decisions, and the reasons for the decisions, are recorded. If the decision is to share information, a record must be made of who the information was shared with, and what information is shared.

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Information from Children

2.12 Parents’ permission should generally be sought before speaking to children, but not in circumstances that would either put a child at risk or compromise evidence.

2.13 Children have the same right to confidentiality as adults, but in agreeing to keep information confidential, the risks to this or another child should be considered, as should the child’s age and understanding.

2.14 A young person aged 16 or 17, or a child under the age of 16 who has the capacity to understand and make their own decisions, may give, or refuse, consent to sharing information.  Children aged 12 and over may generally be expected to have sufficient understanding.  Younger children may also have sufficient understanding.  In most cases, where a child cannot consent or where it is judged that they are not competent to consent, a person with parental responsibility should be asked to consent on behalf of a child.

2.15 The age and understanding of the child is a factor when:

  • It is thought necessary not to involve parents
  • The child does not want the information shared with their parents

2.16 Where the child requests that the information should not be passed on to anyone, the key consideration is whether sharing, or not sharing, the information will place the child, or any other child, at risk, or not reduce risk. In such cases it is crucial that the limits of confidentiality are made clear.

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Enquiries/Consultation

2.17 Where there is uncertainty about what is involved, children’s social care should be contacted to seek clarification. In this situation, callers may be cautious about sharing detailed information. At this stage they should expect to share the following information:

  • what the concern is
  • evidence to support the concern and its possible impact on the child or other children
  • what the agency has done about the concern
  • the impact of actions taken already
  • other knowledge of the child and family that may clarify whether the child or other children may be in need of protection

2.18 Once the social worker has determined the nature of the concern and whether a referral is needed, the caller will be advised about whether or not it is appropriate to give more information at this stage.

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Referral

2.19 When deciding to report concerns to children’s social care or police, all agencies will need to consider the following:

  • Is it necessary to share information given the duties and responsibilities placed upon the agency?
  • Is the child or young person of sufficient age and understanding to give ‘informed’ consent?
  • Is parental consent required to share information? (If so the consent of any one parent acting alone, rather than all those with parental responsibility is required)
  • Does concern about the child, or the risk of significant harm, indicate the need for caution in informing parents at this stage?

2.20 When receiving information children’s social care must determine:

  • Whether consent has been obtained to share information
  • With whom they should share the information
  • Is a decision not to seek or to override parents’ permission appropriate?

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Sharing Information When Children and Young People Move

2.21 When a child who is believed to be at risk of significant harm moves it is crucial that all agencies pass on relevant information to those who become responsible for the child. This should be done promptly, with key information passed on immediately by telephone, fax or secure email.

Sharing Information within Assessments

2.22 Social workers will need to make it clear to children, families and agencies that when consent is given for sharing of information to complete an Assessment, the findings of the Assessment will be shared with all relevant agencies and family members and may be presented in court proceedings (see paras 2.34 to 2.38 below).

Sharing Information with Strategy Discussions/Meetings

2.23 These discussions are used to share relevant information between agencies, and to plan child protection enquiries and family support assessments.

  • The meeting will decide what information to share with the family about the strategy discussion
  • All agencies (relevant to the child), whether attending or not, must receive feedback on the decisions made at the strategy discussion

How Information is shared

2.24 If the decision is made to share information, it is important that the following applies:

  • information is only shared that is relevant and necessary to safeguard children.
  • information is shared  with those who need to know
  • information shared is accurate and up-to-date
  • information is shared in a secure way
  • it is established with the recipient who the information will be forwarded to, and ensured that the person receiving the information understand the limits of any consent that has been given

2.25 Providing it doesn’t compromise the safety of a child or put a criminal investigation at risk the subject of the information should be informed that it has been shared.

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Recording

2.26 Decisions about why information is shared (or not) must be recorded at all stages of childcare work by all the parties involved. If the decision is to share, then it must be recorded what information is to be shared and with whom.

Keeping Records

2.27 Professionals involved in child protection work must keep accurate and detailed records of all contacts with children and families. Agencies must ensure that policies and procedures are in place for the proper receipt, secure storage and retrieval of information relating to any concerns expressed regarding child protection issues.  

2.28 Multi-agency child protection work requires careful analysis of all available information.  The full significance of events may only become apparent over time.

2.29 It may be necessary for an agency to conduct a review of the way in which a child protection case has been handled.  A multi-agency serious case review may be conducted through Leicester, Leicestershire and Rutland Local Safeguarding Children Board Serious Case Review Subcommittee.  Such reviews will be based on records kept by the professionals involved.

2.30 All agencies must ensure that procedures and arrangements are in place to provide for records to be maintained for such a period of time as the agencies consider to be appropriate in the interests of ensuring that full information is available to protect the interests of children.  This will require that records are maintained for a considerable period of time.  

Access to Records

2.31 All agencies must ensure that procedures and arrangements are in place to provide for access to records by relevant persons, if it is appropriate or required by legislation.

2.32 The relevant legislation includes:

Data Protection Act 1998
Access to Health Records Act 1990
Education (School Records) Regulations 1989

2.33 The effect of the above legislation is to give individuals the right of access to records held on them by local authorities, housing authorities, health professionals and schools.  Persons who have parental responsibility for a child may also be able to gain access to records held in respect of that child.

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Disclosure of Information in Court Proceedings

2.34 Any party in court proceedings may seek to obtain information from files kept by the professional agencies to whom these procedures apply in order to assist in the presentation of their case to court.  Any request for disclosure of documents may be accompanied by a request for the attendance of a witness from the particular agency.

2.35 Particular considerations apply to documents in the hands of the police in cases before the criminal courts.  As a general rule, material which is not disclosed by the police to the defence in advance of any hearing may be requested by the defence.  This is sometimes referred to as "unused material".  In exceptional cases, it may be possible to argue that such information should not be disclosed, but it must be emphasised that this will be most unusual.

2.36 Other agencies will receive requests for disclosure of information in criminal proceedings and for the purposes of private family law proceedings.

2.37 Individual agencies must expect that their professionals will be asked to attend court and produce records

2.38 Agencies should always seek their own legal advice when requested to disclosed confidential information.

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Sharing Information about those who may pose a risk to children

2.39 All agencies must alert children’s social care to the presence of offenders and others who pose a risk to children (formerly ‘Schedule 1 offenders’) in the relevant Authority’s area, particularly where the offender is in a household with children, or there is any potential contact with children. The permission of the person involved is not needed before this information is shared. Children’s social care and the police will consider the following issues:

  • The level of risk that the person poses
  • Meeting the person to give him/her time to inform appropriate people about his/her status and risk i.e. his/her new partner etc
  • Children’s social care have the responsibility to decide what information they will share with the partner etc. without his/her permission, in order to safeguard children
  • The police have the responsibility to decide whether and what information to share with the neighbourhood
  • Balancing benefits of protecting children with any untoward risks to public order or safety
  • Consideration should be given to calling a risk management meeting to manage any risk to the general public etc.

Please Refer to Chapter 16: Managing offenders who pose a risk to children

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Data Protection Act

2.40 Agencies should have their own specific guidelines in response to the Data Protection Act. This should contain:

  • More detailed guidance on how confidentiality will be maintained within organisations
  • Specific details about data protection i.e. how “subject data” obligations will be met
  • Whether data subjects will be asked to review their own data and how this will be achieved
  • Security controls and access arrangements
  • The quality standards for record keeping and how they will be maintained

Problem Resolution

2.41 The question of appropriate information sharing is one that may well give rise to uncertainty. This chapter should clarify responsibilities and prevent disputes about the appropriateness of sharing information.

2.42 Where a dispute arises, please refer to the Chapter 23: Resolution of Professional Disagreements in Work Relating to the Safety of Children

2.43 Specialist advice on information sharing can be obtained by each organisations data protection specialist.

2.44 “If a doubt exists whether to share information or not, the protection of the child is paramount and staff should be explicitly supported to exercise proper judgement” (Bichard Principle No. 7).

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