Protocol on Sharing Information in Order to Safeguard and Promote the Welfare of Children
AMENDMENTIn March 2019, this chapter was refreshed. A link was added to the GOV.UK - Child sex offender disclosure scheme guidance (see Child Sex Offender Disclosure Scheme).
1. Purpose and Principles
Effective sharing of information between practitioners and local organisations and agencies is essential for early identification of need, assessment and service provision to keep children safe. Serious case reviews have highlighted that missed opportunities to record, understand the significance of and share information in a timely manner can have severe consequences for the safety and welfare of children.
Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children's social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child's safety or welfare.
Information sharing is also essential for the identification of patterns of behaviour when a child has gone missing, when multiple children appear associated to the same context or locations of risk, or in relation to children in the secure estate where there may be multiple local authorities involved in a child's care. It will be for local safeguarding partners to consider how they will build positive relationships with other local areas to ensure that relevant information is shared in a timely and proportionate way.
Fears about sharing information must not be allowed to stand in the way of the need to promote the welfare, and protect the safety, of children, which must always be the paramount concern. To ensure effective safeguarding arrangements:
- All organisations and agencies should have arrangements in place that set out clearly the processes and the principles for sharing information. The arrangement should cover how information will be shared within their own organisation/agency; and with others who may be involved in a child's life;
- All practitioners should not assume that someone else will pass on information that they think may be critical to keeping a child safe. If a practitioner has concerns about a child's welfare and considers that they may be a child in need or that the child has suffered or is likely to suffer significant harm, then they should share the information with local authority children's social care and/or the police. All practitioners should be particularly alert to the importance of sharing information when a child moves from one local authority into another, due to the risk that knowledge pertinent to keeping a child safe could be lost;
- All practitioners should aim to gain consent to share information, but should be mindful of situations where to do so would place a child at increased risk of harm. Information may be shared without consent if a practitioner has reason to believe that there is good reason to do so, and that the sharing of information will enhance the safeguarding of a child in a timely manner. When decisions are made to share or withhold information, practitioners should record who has been given the information and why.
(Working Together to Safeguard Children)
Effective information-sharing underpins integrated working and is a vital element of both early intervention and safeguarding. Research and experience have shown repeatedly that keeping children safe from harm requires practitioners and others to share information about:
- A child's health and development and any exposure to possible harm;
- A parent who may need help, or may not be able to care for a child adequately and safely; and
- Those who may pose a risk of harm to a child.
Often it is only when information from a number of sources has been shared and put together that it becomes clear that a child is at risk of or is suffering harm. It is worth bearing in mind that enquiries following child deaths and other situations where practice has been called into question, have repeatedly identified failure to share information as a contributory factor.
All LSCP agencies have subscribed to the over-riding principle that the needs and rights of children come first, and that where those needs and rights conflict with those of adults, any conflict must be resolved in the child's favour. At the same time, professionals and agencies will be concerned to balance their duties to protect children from harm with their general duty towards their patient or service user. It is hoped that this protocol will help professionals and agencies in the task of deciding in individual cases where the proper balance lies.
LSCP strongly supports the principle of working in partnership with children, parents/carers and other family members. This means among other things seeking the consent of the child and family wherever it is possible and consistent with the child's best interests. This should include wherever possible seeking clear, explicit and informed consent from the individual(s) concerned for information about them to be shared with specified other individuals or agencies. Where such consent can be freely obtained, this is clearly the best way of resolving any potential conflict of interest. Agencies are encouraged to develop procedures for obtaining and recording such consent. However, it is recognised that frequently such consent cannot be obtained, either because it is refused, the individual concerned cannot be contacted within a reasonable time to give consent, or in exceptional cases, even seeking the consent would place a child at greater risk of harm. This protocol relates primarily to the sharing of information where such agreement is not available, although the data protection principles relate to all situations.
LSCP supports the 6 key points of information sharing outlined in the Information sharing: Practitioners' guide Integrated working to improve outcomes for children and young people which can be found on the Department for Education website:
- 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 suffering Significant Harm or an adult at risk of serious harm, or if it would undermine the prevention, detection or prosecution of a serious crime 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 judgment 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 information or not.
2. The Legal Framework
The General Data Protection Regulations (GDPR) and the Data Protection Act 2018
The General Data Protection Regulations (GDPR) and the Data Protection Act 2018 supersede the Data Protection Act 1998. Practitioners must have due regard to the relevant data protection principles which allow them to share personal information.
The GDPR and Data Protection Act 2018 place greater significance on the need for organisations to be transparent and accountable in relation to their use of data. All organisations handling personal data must ensure they have comprehensive and proportionate arrangements for collecting, storing, and sharing information in place. This also includes arrangements on informing service users about the information they will collect and how this may be shared.
The GDPR and Data Protection Act 2018 do not prevent, or limit, the sharing of information for the purposes of keeping children and young people safe.
To effectively share information:
- All practitioners should be confident of the processing conditions which allow them to store, and share, the information that they need to carry out their safeguarding role. Information which is relevant to safeguarding will often be data which is considered 'special category personal data' meaning it is sensitive and personal;
- Where practitioners need to share special category personal data, they should be aware that the Data Protection Act 2018 includes 'safeguarding of children and individuals at risk' as one of conditions that allows practitioners to share information with others without consent:
- Information can be shared legally without consent, if a practitioner is unable to/cannot be reasonably expected to gain consent from the individual, or if to gain consent could place a child at risk;
- Relevant personal information can also be shared lawfully if it is to keep a child or individual at risk safe from neglect or physical, emotional or mental harm, or if it is protecting their physical, mental, or emotional well-being.
Practitioners looking to share information without consent should consider which processing condition in the Data Protection Act 2018 is most appropriate in the particular circumstances of the case. This may be the safeguarding processing condition or another relevant provision.
The Human Rights Act 2000
The Human Rights Act has the effect of enacting in the law in England and Wales the provisions of the European Convention on Human Rights.
It has been suggested that, regardless of the restrictions on the sharing of information within the Data Protection Act, Article 8 of the Convention may prevent it altogether, as it states that 'everyone has the right to respect for his private and family life, his home and his correspondence'. However, it should be recognised that Article 8 does not create an absolute right to privacy - the right is to 'respect' for private and family life. Moreover, the Article goes on to describe the circumstances in which a public authority can interfere with the exercise of this right. These circumstances are:
'as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
It seems clear that a number of these circumstances are highly relevant in a child protection context.
Furthermore, Article 3 which states that 'No one shall be subjected to torture or to inhuman or degrading treatment' has paramountcy over Article 8. This has already been clarified within a leading judgement (Re F, 2000) which states 'It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well intentioned, to create or perpetuate situations which jeopardise their welfare'.
The Children Act 1989
There are a number of provisions within the Children Act which are relevant to information sharing, and specifically to the legal power to disclose personal information.
It is well known that children's social care have a duty under Section 47 of the Act to 'make enquiries' where there is 'reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm'. The statutory guidance in 'Working Together' makes it clear that these enquiries should be carried out in a way which is consistent with 'The Framework for the Assessment of Children in Need and Their Families', which specifically requires relevant information to be sought from other agencies.
It is less well known that Section 47 also places a duty on the other agencies represented within LSCP 'to assist them (the local authority) with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so'. Section 47 therefore provides both a right and a duty firstly on social care to seek relevant information and secondly on other agencies to provide such information.
Increasingly, as recommended by 'Working Together', it is the practice to carry out a social work assessment using the Assessment Framework in order to decide, among other things, whether further enquiries are necessary under Section 47. It should be remembered that such assessments are equally a statutory duty of social care, under Section 17 of the Children Act. Section 27 of the Act requires other agencies to help social care carry out its duties under Section 17, as long as to do so is compatible with their own statutory duties and that by doing so they would not unduly prejudice the discharge of their own functions. Consequently social care may seek information about a child in need in relation to any assessment, or ongoing casework, and not just in relation to child protection enquiries. For their part, other agencies may have a duty to provide the information unless they can show how this is not compatible with their own statutory duties.
CAFCASS: Children & Family Reporters (Family Court Welfare Officers)
Children & Family Reporters and local authority social workers working under Sect. 7 of the Children Act 1989, request information about people involved in private law proceedings. The release of this information is authorised under paragraph 23 of the Appendix to LAC (88) 17. Conversely, workers conducting investigations in connection with child protection will often seek information from Children & Family Reporters. Such information will have been gathered in the context of private law enquiries as above, and its release will always require the permission of the court. If social care propose to release information from a file containing comments made by a Children & Family Reporter either verbally or in writing, then the Children & Family Reporter, or local CAFCASS manager, must be consulted first.
The Crime and Disorder Act 1998
Section 115 of the Crime and Disorder Act 1998 may provide agencies and professionals with the power to disclose personal information. It provides that any person can lawfully disclose information, where necessary or expedient for the purpose of any provision of the Act, to a Chief Officer of Police, a Police Authority, Local Authorities, Probation Provider or Health Authority (or to a person acting on behalf of any of these bodies), even if they do not otherwise have this power. The 'purposes' of the Act referred to are wide and include a range of measures such as local crime audits, youth offending teams, Anti-Social Behaviour Injunctions, sex offender orders and local child curfew schemes. Any disclosure must be in line with the Data Protection Act 2018 particularly the data protection principals.
Criminal Justice Act 2003 (inserted by s. 140 Criminal Justice and Immigration Act 2008)
The Child Sex Offender Review (CSOR) Disclosure Scheme (ss 327A and 327B) is designed to provide members of the public with a formal mechanism to ask for disclosure about people they are concerned about, who have unsupervised access to children and may therefore pose a risk. This scheme builds on existing, well established third-party disclosures that operate under the Multi-Agency Public Protection Arrangements (MAPPA).
Police will reveal details confidentially to the person most able to protect the child (usually parents, carers or guardians) if they think it is in the child's interests.
The scheme has been operating in all 43 police areas in England and Wales since 2010. The scheme is managed by the Police and information can only be accessed through direct application to them.
If a disclosure is made, the information must be kept confidential and only used to keep the child in question safe. Legal action may be taken if confidentiality is breached. A disclosure is delivered in person (as opposed to in writing) with the following warning:
- 'That the information must only be used for the purpose for which it has been shared i.e. in order to safeguard children;
- The person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential and they will not disclose this information further;
- A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking'. See GOV.UK - Child sex offender disclosure scheme guidance.
If the person is unwilling to sign the undertaking, the police must consider whether the disclosure should still take place.
Crime and Security Act 2010
The Domestic Violence Disclosure Scheme (DVDS) (ss 24 – 33) commenced on 8 March 2014. The DVDS gives members of the public a formal mechanism to make enquires about an individual who they are in a relationship with, or who is in a relationship with someone they know, where there is a concern that the individual may be violent towards their partner. This scheme adds a further dimension to the information sharing about children where there are concerns that domestic abuse is impacting on the care and welfare of the children in the family.
Members of the public can make an application for a disclosure, known as the 'right to ask'. Anybody can make an enquiry, but information will only be given to someone at risk or a person in a position to safeguard the victim. The scheme is for anyone in an intimate relationship regardless of gender.
Partner agencies can also request disclosure is made of an offender's past history where it is believed someone is at risk of harm. This is known as 'right to know'.
If a potentially violent individual is identified as having convictions for violent offences, or information is held about their behaviour which reasonably leads the police and other agencies to believe they pose a risk of harm to their partner, a disclosure will be made.
3. Professional Guidance
The General Medical Council (GMC) has produced guidance entitled Confidentiality (1995). It emphasises the importance in most circumstances of obtaining a patient's consent to the disclosure of personal information, but makes clear that information may be released to third parties - if necessary without consent - in certain circumstances. Those circumstances include the following.
Disclosure in the Patient's Medical Interests
"Problems may arise if you consider that a patient is incapable of giving consent to treatment because of immaturity, illness, or mental incapacity, and you have tried unsuccessfully to persuade the patient to allow an appropriate person to be involved in the consultation. If you are convinced that it is essential in the patient's medical interests, you may disclose relevant information to an appropriate person or authority. You must tell the patient before disclosing any information. You should remember that the judgement of whether patients are capable of giving or withholding consent to treatment or disclosure must be based on an assessment of their ability to appreciate what the treatment or advice being sought may involve, and not solely on their age;" (para 10).
"If you believe a patient to be a victim of neglect or physical or sexual abuse, and unable to give or withhold consent to disclosure, you should usually give this information to an appropriate responsible person or statutory agency, in order to prevent further harm to the patient. In these and similar circumstances, you may release information without the patient's consent, but only if you consider that the patient is unable to give consent, and that the disclosure is in the patient's best medical interests." (para 11).
Disclosure in the Interests of Others
"Disclosure may be necessary in the public interest where a failure to disclose information may expose the patient, or others, to risk of death or serious harm. In such circumstances you should disclose the information promptly to an appropriate person or authority." (para 18).
The GMC has confirmed that its guidance on the disclosure of information which may assist in the prevention or detection of abuse, applies both to information about third parties (e.g. adults who may pose a risk of harm to a child), and about children who may be the subject of abuse.
The Nursing and Midwifery Council has produced Guidelines for professional practice (1996), which contains the following advice on providing information.
"Disclosure of information occurs":
- With the consent of the patient or client;
- Without the consent of the patient or client when the disclosure is required by law or by order of a court; and
- Without the consent of the patient or client when the disclosure is considered to be necessary in the public interest.
The public interest means the interests of an individual, or groups of individuals or of society as a whole and would, for example, cover matters such as serious crime, child abuse, drug trafficking or other activities which place others at serious risk (paras 55-56).
Sharing information is essential to enable early intervention to help children, young people and families who need additional services to achieve positive outcomes, thus reducing inequalities between disadvantaged children and others. These services could include additional help with learning, specialist health services, help and support to move away from criminal or anti-social behaviour, or support for parents in developing parenting skills. As Lincolnshire moves towards integrated children's services, professional and confident sharing of information is becoming more important to realising the potential of these new arrangements to deliver benefits for children, young people and families.
Information sharing is also vital to safeguarding and promoting the welfare of children and young people. A key factor in many serious case reviews has been a failure to record information, to share it, to understand the significance of the information shared, and to take appropriate action in relation to known or suspected abuse or neglect.
We know that practitioners recognise the importance of information sharing and that there is much good practice. But practitioners also tell us that in some situations they feel constrained from sharing information by their uncertainty about when they can do so lawfully. This guidance aims to provide clarity on that issue. It is important that practitioners:
- Are supported by their employers in working through these issues;
- Understand what information is and is not confidential, and the need in some circumstances to make a judgment about whether confidential information can be shared, in the public interest, without consent;
- Understand and apply good practice in sharing information at an early stage as part of preventative work;
- Are clear that information can normally be shared where you judge that a child or young person is at risk of suffering significant harm or that an adult is at risk of serious harm.
All agencies should have:
- A systematic approach within their agency to explaining to children, young people and families when they first access the service how and why information may be shared, which will build the confidence of all involved;
- Clear systems, standards and protocols for sharing information. These may derive from their agency's policies, any local protocols in place, or from their professional code of conduct;
- Access to training where they can discuss issues which concern them and explore case examples with other practitioners;
- A source of advice and support on information sharing issues.
- The statutory guidance on section 11 of the Children Act 2004 states that in order to safeguard and promote children's welfare, the agencies covered by section 11 should make arrangements to fulfil these duties.
In deciding whether there is a need to share information you need to consider your
legal obligations including:
- Whether the information is confidential; and
- If it is confidential, whether there is a public interest sufficient to justify sharing.
Not all information is confidential. Confidential information is information of some sensitivity, which is not already lawfully in the public domain or readily available from another public source, and which has been shared in a relationship where the person giving the information understood that it would not be shared with others. For example, a teacher may know that one of her pupils has a parent who misuses drugs. That is information of some sensitivity, but may not be confidential if it is widely known or it has been shared with the teacher in circumstances where the person understood it would be shared with others. If however it is shared with the teacher by the pupil in a counselling session, for example, it would be confidential.
Confidence is only breached where the sharing of confidential information is not authorised by the person who provided it or to whom it relates. If the information was provided on the understanding that it would be shared with a limited range of people or for limited purposes, then sharing in accordance with that understanding will not be a breach of confidence. Similarly, there will not be a breach of confidence where there is explicit consent to the sharing.
Even where sharing of confidential information is not authorised, you may lawfully share it if this can be justified in the public interest. Seeking consent should be the first option, if appropriate. Where consent cannot be obtained to the sharing of the information or is refused, or where seeking it is likely to undermine the prevention, detection or prosecution of a crime, the question of whether there is a sufficient public interest must be judged by the practitioner on the facts of each case. Therefore, where you have a concern about a child or young person, you should not regard refusal of consent as necessarily precluding the sharing of confidential information.
A public interest can arise in a wide range of circumstances, for example, to protect children or other people from harm, to promote the welfare of children or to prevent crime and disorder. There are also public interests, which in some circumstances may weigh against sharing, including the public interest in maintaining public confidence in the confidentiality of certain services. The key factor in deciding whether or not to share confidential information is proportionality, i.e. whether the proposed sharing is a proportionate response to the need to protect the public interest in question. In making the decision you must weigh up what might happen if the information is shared against what might happen if it is not, and make a decision based on a reasonable judgment.
It is not possible to give guidance to cover every circumstance in which sharing of confidential information without consent will be justified. Practitioners must make a judgment on the facts of the individual case. Where there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied. However there will be other cases where practitioners will be justified in sharing some confidential information in order to make decisions on sharing further information or taking action - the information shared should be proportionate.
It is possible however to identify some circumstances in which sharing confidential information without consent will normally be justified in the public interest. These are:
- When there is evidence that the child is suffering or is at risk of suffering significant harm; or
- Where there is reasonable cause to believe that a child may be suffering or at risk of significant harm; or
- To prevent significant harm arising to children and young people or serious harm to adults, including through the prevention, detection and prosecution of serious crime.
- For the purposes of this guidance, serious crime means any crime which causes or is likely to cause significant harm to a child or young person or serious harm to an adult.
There is an increasing emphasis on integrated working across children's services so that support for children, young people and families is provided in response to their needs. The aim is to deliver more effective intervention at an earlier stage to prevent problems escalating and to increase the chances of a child or young person achieving positive outcomes. In some areas there is increased use of multi-agency services, for example in children's centres to support child health development; or through youth inclusion and support panels (YISPs) to support young people to help them move away from involvement in crime and disorder.
Whether the integrated working is across existing services or through specific multi-agency structures, success depends upon effective partnership working between universal services (such as education and primary health care) and targeted and specialist services for those children, young people and families at risk of poor outcomes. Preventative services working in this way will be more effective in identifying concerns about suffering significant harm, for example as a result of abuse or neglect. However, in most situations children, young people and family members will require additional services in relation to education, health, behaviour, parenting, or family support, rather than intervention to protect the child or young person from harm or to prevent or detect serious crime.
Effective preventative services of this type will usually require active processes for identifying children and young people at risk of poor outcomes, and passing information to those delivering targeted support. Practitioners sometimes express concern about how this can be done lawfully.
Seeking consent should be the first option. Practitioners in universal, targeted and specialist services, including multi-agency services, should proactively inform children, young people and families, when they first engage with the service, about their service's policy on how information will be shared, and seek their consent. The approach to sharing information should be explained openly and honestly. Where this is done, young people and families will be aware how their information may be shared, and experience shows that most will give consent.
Information which is not confidential may generally be shared where that is necessary for the legitimate purposes of preventative work. Where information is confidential, however, and consent is refused, that should be respected, unless in the practitioner's professional judgment on the facts of the case, the public interest justifies the sharing of information.
It is critical that all practitioners working with children and young people are in no doubt that where they have reasonable cause to suspect that a child or young person may be suffering or may be at risk of suffering significant harm, they should always consider referring their concerns to children's social care. While, in general, you should seek to discuss any concerns with the family and, where possible, seek their agreement to making referrals to children's social care, this should only be done where such discussion and agreement-seeking will not place a child at increased risk of suffering significant harm or lead to interference with any potential investigation. The child's interests must be the overriding consideration in making any such decisions.
In some situations there may be a concern that a child or young person may be suffering or at risk of significant harm or of causing serious harm to others, but you may be unsure whether what has given rise to your concern constitutes 'a reasonable cause to believe'. In these situations, the concern must not be ignored. You should always talk to someone to help you decide what to do - a lead person on child protection, a Caldicott guardian, or a discussion with a trusted colleague or another practitioner who knows the child. The decision, to share information or not, should be recorded.
Agencies requesting information from others should clarify the purpose of seeking the information, and what is the legal basis of the requests. For example, social workers seeking information should clarify whether they are acting under Section 17 or Section 47 of the Children Act 1989, or under some other statutory duty.
When considering sharing information, professionals will need to consider the issues addressed above concerning:
- The power to disclose;
- The duty to disclose;
- Issues of consent.
The interests of accuracy and of recording the reasons for sharing information will normally be best served by putting the information in writing. It will also be helpful to indicate whether the party sharing the information feels it should not be disclosed to the service user, or parent, as most records are now accessible to service users unless exempted for a specific reason, such as the likelihood of causing serious harm. In urgent situations, information will need to be shared verbally, but should then if possible be followed up and confirmed in writing.
Agencies should have clear and public policies covering the storage and retention of information, and access by service users and others acting on their behalf to such records. Particular attention must be paid to the security of information which has been obtained from other agencies or professionals.