“Problems with records and recordkeeping practices are not confined to the past”: a challenge from the Royal Commission into Institutional Responses to Child Sexual Abuse

Abstract

This paper describes and analyses the campaign by the Care Leaver community and other stakeholders to bring about a royal commission into child abuse in Australia. Care Leavers did not get the royal commission they wanted and expected—other more powerful forces were at play—but the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) was highly effective in exposing the complex nature and extent of the problem of child sexual abuse, “the core transgression of childhood innocence”. This paper aims to show that, although the Royal Commission disappointed many Care Leavers with its narrow focus on sexual abuse, when it eventually reported on records and recordkeeping, the Commission surprised many by moving beyond its narrow remit. Issues relating to records and recordkeeping were not originally a prominent part of the Commission’s mandate, but they emerged as one of the crucial issues that influence the quality of the out-of-home Care experience and child protection. This finding has created a fresh context in which Care Leaver advocates, academics and other professionals can work together to further a new agenda for recordkeeping in out-of-home Care.

Appendices

Appendix 1

Table 1 Examples of failures to uphold children’s rights in out-of-home care (This previously unpublished list is compiled by the author principally from analyses of the four Senate reports (2001, 2004, 2009, 2018) together with the most relevant volume of the Royal Commission’s Final Report (Royal Commission 2017e)

Appendix 2

Clan advocacy and action on historical records

July 2017, Revised October 2018

This advocacy and action agenda was developed at a number of CLAN Committee of Management planning workshops in 2017 and 2018. Previously unpublished, the agenda is derived from CLAN’s long and continuing history of advocacy for Care Leaver access to records, from our Charter of Rights in Records (Golding 2015) and from the findings and recommendations of the abovementioned national summit (Setting the record straight for the rights of the child 2017; Evans 2017) and the Final Report of the Royal Commission (2017a, b, c, d, e).

The problem

Achieving access to records is a major and long standing issue:

• The records are often disorganised

• Processes for accessing the records are often confusing or adversarial

• The contents of many personal records are negative and demeaning

• Support for individuals accessing the records is either non-existent or inadequate

• The records are not acknowledged as being the property of the Care Leaver.

Because these issues are pervasive but vary across States and Territories, CLAN will advocate for reforms within all State and Territory governments and departments, employing a seven-point action agenda.

The action agenda

• 1. Immediate priority access for older care leavers

  • Endorse and implement the Commonwealth Department of Social Services (DSS) access principles and guidelines

  • FOI/RTI processes based on proactive disclosure, i.e. the right of people to know what records are held about them

  • Without removing any rights to full access to records, require record holders to identify key and critical documents to provide a pathway when case files are voluminous

  • Use administrative discretion to release records, not to withhold them

  • Assert the right to full unredacted release of records unless it is clearly unlawful to do so

  • Explain and discuss redactions where they must be used

  • Provide support services for access and interpretation of records

  • Lobby Birth, Deaths and Marriage Registrars for a consistent, agreed and national approach for free access to 2 generations (i.e. me, parents, grandparents) of certificates

• 2. Support for adding to/annotating official records and specifying access controls

  • Normalise the existing right to incorporate individual’s stories into the record

  • Advocate for the person’s story to be presented first in personal archives

  • Enable access wishes to be clearly expressed and honoured, including informed consent for access by researchers

• 3. Remediation of legacy recordkeeping systems

  • Continue advocacy for resources and clear plans to remediate older systems, particularly name indexing and facilitation of connections to family

  • Develop guidance for organisations transitioning from current service provider to legacy record holder

• 4. Development of care leaver history and heritage (see also national orphanage museum strategic plan)

  • Encourage and support initiatives that enable individuals Care Leavers and communities to tell their stories of “care” experiences, the impacts of institutional systems, and to create their own histories, exhibitions, memorials, commemorations, storytelling and other activities

  • Lobby for Care Leaver history and heritage to be incorporated into primary, secondary, university and other curricula, professional and community education

• 5. Training for records release

  • Work collaboratively to develop guidelines and training on how to release records with minimal redaction (i.e. only where absolutely necessary), including informative disclosure of reasons for redactions, accessible processes for appeal, effective monitoring and oversight to ensure fair and consistent practices and specialised release mechanisms over reliance on generic FOI/RTI processes.

• 6. Research ethics

  • Work collaboratively to devise protocols and obligations for researchers in dealing with access to case files and personal information in out of home care research.

• 7. Recommendations of the royal commission (RCIRCSA) and beyond

This part of the Strategic Plan was previously framed as advice to the RCIRCSA, but in December 2017 the Commission published its Final Report—of which Volume 8 is devoted entirely to Recordkeeping and information sharing. We are now recasting this section of the Strategic Plan to accord with the recommendations contained in that report. We endorse the five principles recommended in the Final Report, giving particular attention to Principle 5:

Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent.

CLAN will also continue to work with the partners who collaborated in the National Summit on Setting the Record Straight for the Rights of the Child held in Melbourne in May 2017. In particular, CLAN will participate in the Rights in Records by Design Project funded through an Australian Research Council Grant—through Monash University and Federation University—which is pursuing many of the issues discussed at the Summit.

A special aspect of this project that CLAN will monitor closely is a national survey of the views of the capacities of recordkeeping and other professionals involved in childhood out-of-home Care of their capacities to implement the Recordkeeping Principles of Child Safety and Wellbeing set down by RCIRCSA and the Records Access Principles and Guidelines developed in 2015 as part of the DSS’s Find & Connect Services and Projects. The national survey will become an annual event.

In conjunction with these initiatives, CLAN will take the opportunity to refine its Charter of Rights in Records and to urge recordkeepers to honour that Charter.