The silence of the Children’s Commissioners: Part II

This is a post by Sarah Phillimore

In May 2021 I wrote about the strange silence of the Children’s Commissioners about the issues of child safeguarding and welfare, which attracted international attention in the wake of the High Court ruling in Bell v Tavistock.

I could find nothing on the websites of any of the four Commissioners to suggest that this was an issue they were even aware of, let alone discussing. I was contacted by a person who made a FOI request on 7th January 2021 to the Children and Young People’s Commissioner Scotland for information held on the Keira Bell High Court judgment of 1st December 2020. This request was refused, went through an appeal process and the refusal was upheld.

I commented back in May that the reasons for refusal were concerning:

I have some sympathy with the need to exempt from disclosure material which represents the necessary ‘to and fro’ as people raise, discuss and refine issues of importance. I also understand the importance of maintaining confidentiality around legal advice. But it is very concerning that an organistion with the status of a Children’s Commissoner is clearly concerned that the nature of the discussion within its organisation and with the other offices may risk contributing to the ‘toxic nature’ of the debate. How could this be possible given that all who work there must be alive to the need ‘to keep the discussion focused on the issues and on the law rather than personalising them’?

I suspect there are two problems here. Given the nature and extent of institutional capture in the UK, individual staff members may have gone way beyond a focus on the law and engaged in moral castigation of those ‘hateful bigots’ who would seek to impede a child’s identification of their ‘authentic selves’. OR there is a realistion that simply commenting on the relevant law will be seen and seized upon by many as a ‘hateful’ ‘bigoted’ attack on the rights of an ‘exceptionally vulnerable’ minority. 

I have now had the benefit of reading more fully the reasons for upholding the refusal in ‘Decision Notice 171/2021’

The analysis notes that the withheld information comprises an email chain that originated from a member of staff of one UK Children’s Commissioner to their Commissioner, which was forwarded on. The Scottish Children’s Commissioner refused to disclose that email under sections 30(c) and 36(2) of The Freedom of Information (Scotland) Act [FOISA]. There was also an email from its in-house legal officer which it refused to disclose, citing section 36(1) of FOISA, which exempts disclosure of information which is confidential due to legal privilege.

The applicant argued that the public interest favoured disclosure as it pertained to a significant issue of child safeguarding and the views of the office charged with safeguarding those interests.

The Commissioner recognised the tension between two competing interests; public interest in such a significant area of child safeguarding, but also the interest of the Scottish Children’s Commissioner to receive full and unhindered legal advice to enable it to come to fully formed decisions. It decided that legal privilege outweighed the public interest in this regard.

With regard to the emails, 36(2) of FOISA provides that information is exempt from disclosure if it obtained from another person and disclosure would constitute a breach of confidence. However, it is generally accepted in common law that an obligation of confidence will not be enforced to restrain disclosure of information which is necessary in the public interest.

There are three main requirements to establish if information is given in confidence

  • the information must have the necessary quality of confidence
  • the public authority must have received the information in circumstances which imposed on it an obligation to maintain confidentiality
  • unauthorised disclosure must not be to the detriment of the person who communicated the information.

The Commissioner found that the first two requirements were met as the Children’s Commissioners were sharing information with each other ‘in confidence’ to promote their working relations.

But what about the third? The test of detriment does not require substantial damage, and could follow from mere fact of unauthorised disclosure. And this is where, in my view, it gets very interesting. The Scottish Children’s Commissioner stated that it did not have consent for wider disclosure from the individual who shared the information.

It explained that the issue under discussion was and remained highly contentious, with public opinion being very polarised. In its view, disclosure would cause significant emotional distress to this individual, with a real risk of them being exposed to online harassment and abuse for the opinions they expressed

The Commissioner accepted that the risk of online harassment is credible (but no where do I see any discussion of how it would be possible to disclose the contents of the email and keep the emailer’s identity private) and went on to consider the public interest in disclosing in any event. The Commissioner agreed with the reasons put forward by the Commissioner:

  • there was no attempt here to cover up any wrongdoing
  • there was a significant amount of information and commentary already in the public domain
  • at the time the information was withheld this was a live case still before the Court of Appeal
  • sharing information between Commissioners was to be encouraged

So what next?

The applicant has a right to appeal, I do not know if she will exercise that right but she has 42 days from the date of the decision. As an analysis of the relevant law it seems unremarkable – but what it throws up about the nature and the quality of discussion around medical transition is very remarkable indeed.

I can only speculate as to the contents of the relevant email and the language used which led to a credible fear of ‘on line harassment’ if it were revealed. The continuing silence of the Children’s Commissioners in expressing any kind of view about the advisability or efficacy of medical transition makes me ponder that the email was supportive of those who claim that any challenge to or discussion of these issues is ‘transphobia’ or other unacceptable bigotry.

But it doesn’t really matter which ‘side’ of the polarised debate the author fell. What is truly shocking is that we have reached a position in 2021, in a secular democracy, where particular views must be shielded from public gaze lest they attract abuse, intimidation and other threats. This is particularly worrying when the organisations who feel they have no choice but to be silent are those charged with statutory obligations to safeguard our children.

I am not aware that any of the Children’s Commissioners have since expressed any public view at all about medical transition. Perhaps they are awaiting the Cass Review? But at some point, and soon, they are going to have to fulfil their statutory obligations and the silence must end.

EDIT

Thanks to a Twitter user who reminded me that it was Anne Longfield as England Children’s Commissioner who remained completely silent (despite many parents and whistleblowers contacting her) right up until the judicial review proceedings.

However, she then she ordered the Care Quality Commission inspection which reported in January 2021 and found the Tavistock to be ‘inadequate’. Longfield was then replaced by Dame Rachel de Souza as Commissioner. I wonder if there is anything interesting in that timing. I guess we will never be allowed to know.

So useful to be reminded that the Children’s Commissioners do have some role to play. But makes it more worrying that we do not know now what they think of it all. To say ‘but there is lots of information in the public domain!’ is no answer at all. Many of us want to know what those with particular statutory obligations, funded by public money, have to say about one of the most serious medical scandals involving treatment of children in recent decades.

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