One of the professional skills instilled in a lawyer is the need to maintain objectivity when providing advice to clients. It does not serve the client’s interests for a solicitor to become too personally involved with a client or their case. Fortunately, most clients understand this. Impartial advice is what they are looking for. However, contrary to popular myth, lawyers are human too, and from time to time cases come along which invoke a particular human interest.
Towards the end of last year, Lindsays were instructed by a new client in relation to a novel matter. The client was a woman in her late 60’s who had been born during the war. Her mother was very young when the client was born and her father’s identity was never disclosed to her, although she understood from family members that he had been a soldier from abroad, posted to the north of England. Her parents had not been married when she was born and she had been brought up by her grandmother. After a happy and successful life she was now retired.
Recently she had begun to wonder about the identity of her father and had carried out a considerable amount of research. She was aware that her father had been prosecuted, the assumption being that her mother had been under the age of 16 when she had been conceived. She obtained enough information to enable her to apply to the relevant Archives Service for a copy of the court proceedings against the man presumed to be her father. The report confirmed that a record of proceedings was held which mentioned her mother’s name. However, the name of the accused (which would be critical to the client’s further attempts to trace her father) could not be disclosed, as disclosure would contravene the principles laid out in the Data Protection Act 1998 and was also exempt from disclosure under the Sexual Offenders (Amendment) Act 1992.
Initial research suggested that this was correct. However, it seemed that the right to be protected from disclosure of information was overriding the client’s right to know the identity of her father. This right is embodied in Article 7 of the UN Convention on the Rights of the Child. Article 8 of the Human Rights Act 1998 was also of some assistance as it imposes an obligation on the State to disclose specific information to individuals in specific circumstances. Whilst these legal authorities were helpful, they were not conclusive.
However, based on these, Lindsays wrote to the Information Commissioners Office requesting a revision of the Archive Services’ decision. The response was to uphold the original decision on the grounds that the information the client was seeking to recover was not personal data. In other words, information about the court proceedings was not information about herself. Ultimately an application to court could be made to review the original decision but the available appeal procedures would require to be exhausted first.
The client put in her appeal but recognised that if this failed and court proceedings required to be considered, the cost would be prohibitive. Back to the books, and the possibility of using Section 35 of the Data Protection Act emerged. Section 35 sets out circumstances in which information may be disclosed, despite the protections otherwise provided by the Data Protection Act and the Freedom of Information Act. This exemption can apply where, for instance, the disclosure sought is necessary “for the purpose of obtaining legal advice” or “for the purpose of establishing….legal rights”.
Arguably, if the client had the name of the person she presumed to be her father, she would require legal advice as to how she might establish that for certain. She would also have legal rights in relation to her father, particularly in his estate, although money was no part of the client’s motivation. A second letter was sent to the Archives Service. Within a surprisingly short period a letter arrived stating briefly that they had decided to release the information requested and enclosing a copy of the relevant court record. There was the name of the man who was almost certainly the client’s father. He had been 19 years old and a soldier at the time of the court proceedings, the charge being as suspected.
The information was immediately e-mailed to the client who was both shocked and delighted. Remarkably, a Google search against the relevant name immediately produced a website which featured a photograph of the man whom it is reasonable to assume is the client’s father. Her quest goes on, but now with a very real prospect of success.
