Use of personal information in court related documents - advice

This advice provides information regarding the disclosure of personal information regarding children, parents and other family members, carers or professionals in court related documents.

Introduction

Child protection practitioners manage sensitive personal information and must, at all times, exercise scrupulous care to ensure compliance with privacy requirements. It is important that all managers and practitioners have an understanding of the information sharing provisions in the Children, Youth and Families Act 2005 (CYFA) and the principles contained in the Privacy and Data Protection Act 2014 and the Health Records Act 2001.

Information privacy and health records legislation

The Privacy and Data Protection Act and the Health Records Act govern the way organisations manage and exchange personal and health information. The Health Records Act deals with health information and the Privacy and Data Protection Act deals with all other personal information. ‘Personal information’ is information or an opinion that is recorded about a person and which identifies that person, except for ‘health information’ (which is governed by the Health Records Act).

One of the key functions of both Acts is to protect personal and health information from being used or disclosed for purposes other than the primary purpose, or directly related secondary purpose for which it was collected.

The Privacy and Data Protection Act regulates the collection and handling of ‘personal information’, including ‘sensitive information’. ‘Sensitive information’ is more tightly regulated and includes racial, ethnic, political, religious, trade union, and sexual or criminal information about an identifiable person.

Where there is no specific provision in the CFYA which applies to the circumstances, information sharing must be consistent with the Information Privacy Principles described in Schedule 1 of the Privacy and Data Protection Act and the Health Records Act. The principles in full can be found in the respective Acts via the Victorian Legislation and Parliamentary Documents website.

Unauthorised release of information may carry significant unintended consequences including risk to the safety and security of clients, family members, carers or professionals. Particular caution should be undertaken in the following areas:

Family violence

In cases involving family violence, threats of violence, estranged parents or hostility between extended family members, particular caution is required regarding the inclusion of addresses and contact details within documents to be provided to third parties. If a placement address is undisclosed, either court ordered or where this decision rests with child protection, decided by the case planner, this should be accurately recorded on CRIS. However, if a placement is not undisclosed, a carer should be made aware the child’s parent(s) are entitled to know the child’s whereabouts.

Contact details for professionals should not be included in the court report and if a report template is generated from CRIS these details will automatically be omitted.

Particular care should be exercised where a court report includes private information about multiple children and family members (for example, half-siblings and/or step-children within blended families).

Client relationship information system (CRIS)

Practitioners and managers should be aware that CRIS routinely auto populates documents and reports with certain information. The need for identifying information in such documents should be considered in the light of the specific circumstances of the case. Information which has been auto populated should be removed where it is inappropriate.

Where practitioners and managers are advised of the need for contact information to be kept confidential, this must be highlighted on the CRIS ‘alerts’ screen.

Where in the course of child protection intervention, significant safety concerns/alerts/restrictions are identified for children, parents or third parties, (for example, legally protected addresses, threats of violence or abduction) they must be highlighted on the CRIS ‘alerts’ screen following a discussion with the case planner. In this situation the address should be marked as “withheld” and the phone number as “silent”, and reviewed by practitioners prior to the release of identifying addresses/contact details in any reports or applications before the Court.

Applications and reports to the Court

Information provided to the Court should be relevant to the specific application. Child protection practitioners will regularly collect information during the course of their involvement with a child that may be important and relevant to the matter. However it may not be necessary to disclose in a court report. The automatic population of address and contact details is often not relevant to the application.

When child protection makes an application to the Children’s Court, the various forms must be completed (for example, notice of protection application). Where inlcuding address or other contact details may place children, family members, carers or professionals at risk or contravene existing orders, practitioners/managers should consult the divisional solicitor or CPLO regarding the appropriateness of inserting ‘details withheld’ in lieu of address details.

This process should also be followed where practitioners are completing a report for the Court. In general, contact details are not relevant to whether a child is in need of protection and as such the child’s address and contact details of other family members do not need to be contained in the protection and disposition reports. Child protection practitioners should carefully consider what the application before the Court is about, and only including personal information that is relevant to the proceedings before the Court in the court report.

In all cases, child protection practitioners must consider whether the inclusion of identifying address/contact details for children, parents or third parties in the notice of protection application, other applications or subsequent reports has potential to compromise their privacy, safety or wellbeing.

Where this is the case, the divisional solicitor or CPLO should be consulted and as appropriate, the contact details omitted.

Particular consideration should be given to:

  • the existence of any prior alerts or decisions regarding the protection of the child or parent’s address or other information
  • whether the placement is undisclosed or not
  • any history of violence or threats, including criminal assaults, between separated parents
  • the relevance of the information to the matter to be considered by the Court
  • the appropriateness of seeking the parent’s consent to the release of the information.

Where there is uncertainty, legal advice should be obtained, from a divisional solicitor or the CPLO, regarding the appropriateness and legal requirements of withholding relevant information.

Information that is relevant to a proceeding should not be excluded from a court report simply because it falls within the definition of personal information or health information. Where there is uncertainty, legal advice should be obtained, from a divisional solicitor or the CPLO. Child protection, or another party, may make a formal application to the Court to withhold the whole or part of the report from another party and this may include personal information that is contained in the report. See advice Preparing the court report.

Additional information

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