Tag Archives: Access to records

A Charter of Rights to Childhood Records

A Charter of Rights to Childhood Records: Updated version

Following some very helpful, constructive comments on an early draft, this revised draft (3 March 2016) is posted with a further invitation to comment. It is also posted on the CLAN website.

We particularly welcome and value comment by Care Leavers, ‘Forgotten Australians’, people formerly placed in foster families, members of the Stolen Generation, former child migrants and people who were, as infants, arbitrarily taken from their mothers.

We will keep this draft open for a period of three months and, at the end of that time, a final draft version will be discussed by the CLAN Committee which will, after due discussion, consider its adoption as CLAN’s position.

PREAMBLE

Whereas:

  • Many Australian children, through no fault of their own, were placed in orphanages, children’s Homes, foster ‘care’ and other forms of institutions that replaced their homes and families and displaced them from ordinary community life; and
  • Many children left institutional ‘care’ angry, ashamed, confused about their identity and disconnected, often not understanding the reasons for their separation from family because no one explained their situation, wanting to re-connect with their families and communities wherever that was still possible, and carrying many unresolved burdens resulting from the physical, emotional and sexual abuse and neglect that were inflicted on them; and
  • Any records that were made and archived in those circumstances may represent the only documented account of the person’s time in such institutions; and
  • The historic reasons for creating, maintaining and archiving these childhood records are now, by the passage of time, redundant.

And recognising that the Australian government is a signatory to the United Nations Convention on the Rights of the Child (1989) which among other things:

  • Affirms that in all actions concerning children, whether undertaken by public or private social welfare institutions, the best interests of the child shall be a primary consideration; and
  • Requires governments to respect a child’s right to know their parents and the right of the child to preserve his or her identity and family ties; and
  • Requires governments to respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis; and
  • Affirms the right of any child temporarily or permanently deprived of his or her family environment to special protection and assistance provided by the State; and
  • Affirms that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Therefore, in response to the contemporary needs of former institutionalised children and by ethical extension of the rights of the child to the adult the child has become, it is declared that:

  1. The historic records should now be held in archives principally in order to help the ‘subject’ person make meaning of the circumstances of their childhood; and/or to connect, if still possible, with family and community; and/or to seek redress and other remedial action for abuse or neglect, where relevant.
  2.  In all cases, every effort must be made by archivist, record-holders and support workers to expedite requests for access to personal records. Special consideration for expedited access to records should be given to the frail and elderly and those involved in litigation or redress claims.
  3. Under no circumstances should a request for records be influenced by consideration of any real or perceived conflict of interest in providing records.
  4. In some cases, the records have been lost, others are incomplete, and many are found to be inadequate for the above purposes. Therefore, in addition to historic personal files and case notes, archivists and other support personnel have a duty to search for and identify other archived records that are relevant to the person’s childhood experience to assist in providing a more complete narrative.
  5. Archivists and record holders must understand that many childhood records are partial; many contain statements that are inaccurate or filtered; and many include personal judgments or opinions and use language that is likely to be offensive. Archivists and records holders have a duty to inform the person of the right to challenge the records, and should encourage them to provide alternative relevant material.
  6. Record holders accept that they have a duty to assist the ‘subject’ person interpret the record with issues like historical context and technical terminology.
  7. The childhood records in relevant archives are ultimately the property of the person who is the subject of the records.
  8. The subject of the records (or, if deceased, that person’s closest living blood relative or by agreement another blood relative) has the right to determine who should have access to those records and the terms of that access.
  9. All agencies and organisations taking children into their custody must produce an official record comprising key documents including the child’s birth certificate, the names and last-known addresses of all members of the child’s family, any court orders or documents related to the reasons for the child’s placement, all medical and educational histories, the names of all people who visit the child during their time in custody, all documents related to transfers to other institutions including foster families and any other official documents that relate to the child’s time in ‘care’.
  10. All agencies and organisations taking children into their custody should encourage and help them to create over time a memory box or similar collection that includes such items as relevant photographs of people, events and places that are central to their time in ‘care’, objects of significance to their time in that facility and any personal or descriptive accounts written by the child.

Acknowledgements

Although they cannot be held responsible for the form of words in the draft, we acknowledge the significant contributions of members of CLAN; Dr Jacqui Wilson of Federation University; and Dr Joanne Evans and Professor Sue McKemmish of Monash University.

For more on this topic see: Whose file is it? Whose story is it? Here

Whose File is it? Whose Story is it?

21 June 2015 (Revised 26 June 2015)

Thanks to good people who offered positive feedback on this blog item. I hope the changes have made it clearer and a better read.

Several profound changes have taken place over recent decades that have had a significant impact on how child welfare records are now compiled, stored, and retrieved. The system of child welfare in Australia (and elsewhere) has been transformed.

The shift away from mass residential ‘care’

Mass congregate ‘care’ – in which it was sometimes difficult to make and keep unique records for each child – is no longer the norm. The vast majority of children ‘in need of care and protection’ today are placed with kin, or in foster families, while residential ‘care’ is usually regarded as a last resort for a small minority.

Case managers are able to give closer attention to individual needs as children move in, through, and out of the system. Consequently, they are recording better information about the causes and history of the child’s placement(s), the background and interaction with the family, and critical incidents and milestones as each child matures.

Children have rights too

The greater acceptance of children’s rights – the UN Convention on the Rights of the Child is now a quarter of a century old – has led to a significant change in the philosophy of child welfare. In principle, it is agreed that children have the right to information about themselves and their family, and the right to participate in the events that shape their lives in ‘care’.

Although some agencies insist that they ‘own’ the records, most would now concede that the subjects of the records are entitled to know what is in them, and that at some point in time they should gain full access to them.

The past is a different place

However, for most of the last century, child welfare records in Australia were made and kept (more or less) purely for administrative, managerial or quasi-legal purposes. At that time, it was never intended that the subjects would read their files – nor were child inmates of institutions ever invited to contribute anything to their record.

Happily, the rationale for holding these historical personal records in closed archives is now under challenge. Record holders are on the back foot, finding it increasingly difficult

  • to resist the surge in applications for access to personal records from older Care Leavers making use of belated rights under Freedom of Information and Right to Information laws; and
  • to articulate the public interest reason for not giving Care Leavers all the information they have.

Some progressive agencies have become proactive in supporting such access. They acknowledge that these historic records have taken on new meanings that were not been imagined when they were first compiled.

Why are these personal files so important to Care Leavers?

It is now clear that these records represent Care Leavers’ best – in some cases, the only – chance of:

  • understanding the narrative of their ‘care’ placement, its causes and history – it’s startling to know that man adults still do not know why they were put into ‘care’ and blame themselves for their terrible childhood;
  • recreating a sense of identity that has its roots in memories of childhood experience;
  • making sense of life-long questions about where they belong;
  • reconstructing and, where still possible, reconnecting with their families; and
  • verifying their memories of specific events in order to validate claims for redress or litigation (although we know that neglect and emotional, physical and sexual abuse perpetrated in institutional ‘care’ were rarely documented).

Gaining access to these records for any of the above purposes is a significant act of empowerment for many Care Leavers.

Where is ‘my file’?

Care Leavers asking for their file sometimes find that it does not exist as a single entity in one location. If they were in more than one placement or with more than one agency – and many were – they will have to play detective, experiencing dead ends and long delays, and being told stories of archive boxes lost in transition or destroyed when a Home was closed.

When they finally track down who holds the parts of their record, it doesn’t necessarily mean they will be able to have full and immediate access to it. In many cases, they are made to jump through bureaucratic hoops by the keepers of the keys to the archives.

The contents can cause pain in the short term.

This short piece is not the place to cite specific examples; but time and again many Care Leavers and support organisations like CLAN (Care Leavers of Australasia Network) have cited content which has distressed and sometimes re-traumatised the survivor. Some of the main issues causing concern are briefly mentioned below.

Errors

Many records are littered with errors of fact about matters such as dates of birth and names of siblings, and even genealogical muddles (with grandmothers, for example, being listed as mothers).

Lies

Sometimes Care Leavers find that they had been lied to as children, for example, being told their parents had died or had abandoned them and wanted no further contact, only to discover in their files undelivered letters from their parents, or pleas to regain custody that were refused. Others learn for the first time that they have long-forgotten siblings who were placed in another Home – and no one bothered to tell them.

Unchallenged value judgments

The welfare storytellers had unimpeded power over what was recorded and what was not, with little control over the quality of what could be written. Many files are packed with opinions, perceptions, subjective assessments of the family situation, and judgments of the child’s attitude, compliance with rules and instances of bad behaviour. Notations, once made, were never challenged, corrected, erased – or unmade. All too often they became the basis of further entries until the falsities attained the status of objective certainty.

Many are disappointed to find nothing positive in their files.

Survivors infer they must have been a burden to their ‘carers’, who never saw anything to praise, applaud, or celebrate. The things children or their parents did wrong cancelled out anything right. Some Care Leavers have been known to destroy ‘their file’ as an act of repudiation of its contents.

Important gaps in many records.

Care Leavers are surprised that their files contain no documents about health, schooling and other significant events in their childhood. More important, for some, records about institutional neglect and gross sexual, physical and psychological abuse are rare. If notes were ever kept about these criminal acts against children at their most vulnerable, they are not often found in the obvious place. Survivors’ files are the least likely place to find the most telling information.

 

Redactions – censorship

Most are troubled by unexplained black-outs or white-outs, or pages withheld. Usually, these mask references to ‘third parties’ – commonly siblings or parents. Risk-aversive record holders are biased in favour of protecting the rights of others – even the dead – over the rights of a survivor who is left wondering why these ‘third parties’ found their way into their file in the first place. Record holders claim that the full release of records is likely to cause harm to someone, but that claim is usually merely asserted and rarely tested by referring it to the third party (where that is still possible). It is time for record holders to stop invoking the magic word ‘privacy’ as if it erases Care Leavers’ right to know.

Where is the voice of the child?

The life-stories found in the archives are often cold, distant and lacking in empathy. The records were written by officials for an official audience – never for the family or the child in later life. The voice of the Care Leaver is nowhere to be heard.

Can the present learn anything from the past?

What can contemporary child and family agencies learn from the mistakes of past practice? If the custodians of the records of older Care Leavers records have been listening, they would have heard two key challenges from historic practices that might improve their current practice.

  • It is the child’s story – theirs to take away when their time in ‘care’ is up.
  • The adults can only tell so much of the story – the child has a critically important point of view too.

Administrators and carers should be warned. From the outset they should understand that the records of a child’s time in ‘care’ will eventually belong to the young person – and that one day, the entire record may be handed over. They should hold no doubt when they write case notes for a young person’s file, that what they write should be fair, balanced, accurate, honest and purposeful. The days when the file says as much about the compilers as about the young person are surely over.

Of course, the agency should archive a copy for the purposes of accountability and any future evaluation of the program so that they can identify areas for improvement (and it would be generous to be able to come to the rescue with a duplicate if former clients lose their files).

To the greatest extent possible, the child and young person should be encouraged to contribute to their own file throughout their time in ‘care’. Apart from engendering reflective thought about their situation and critical events that occur from time to time, this practice ought to ensure that there would be no unexpected revelations when it comes time for them to leave ‘care’.

This form of participation would be developmental: the older the children the more they could be expected to contribute in this way. And the more involved they are the better they will become at articulating and recording the important events that are shaping their young lives. They should tell their own story – and they should be free to challenge other voices who populate their personal file.

The past has not finished with us – whose file is it?

As indicated above, the life-stories found in historic records were never written for the family or the child in later life. The voice of the Care Leaver is nowhere to be heard in the archives.

But is it too late to make amends? Can we retrofit Care Leaver records so that older Care Leavers can reconstruct a more truthful, rounded, and emotionally compelling narrative than their current records convey?

Modern FOI and privacy legislation allows personal information lodged in official records to be challenged ‘where it is inaccurate, incomplete, out of date, or where it would give a false impression’. If an agency is not prepared to amend personal information in accordance with a request, it must, if requested, attach a statement to the personal information that can be read in conjunction with your personal information. A similar rule applies in NSW under the Privacy and Personal Information Protection Act.

This is a fine social justice principle, but few Care Leavers appear to have the stomach for the task of correcting or annotating their ‘official’ record – or do not see it as the best way to reconstruct a more balanced narrative.

Instead, an increasing number of older Care Leavers are writing their own life-stories for their own purposes – for family members, for other Care Leavers or for the wider public – if they can find a publisher. Digital publishing and print-on-demand technologies open up new possibilities, as do short-form magazines and on-line notices. 

A number of support groups encourage Care Leavers to share their stories in newsletters. CLAN, for example, had published more than 300 of these stories to date. These alternative, competing, or counter narratives often resonate with the Care Leaver community who find their files fail to tell the story that makes sense of the childhood they remember. Over the years these story tellers have created a unique community of common interest.

Some Care Leavers have other purposes. Some are content to use whatever is available in their file to reconnect with other members of their fragmented family – or, where it is too late, to pay a visit to a family grave. Another group seek, and sometimes find, the scraps of information that verify their memories of specific events in order to pursue claims for redress or litigation.

These archived records are historic only in the sense that they were written long ago, but imperfect as many of them are, they can make a difference to the quality of Care Leavers’ lives today. Record holders should be unstinting in granting access to those who were once in their ‘care’.