The European Commission has confirmed to us in a letter that infringement proceedings against the UK are being considered and that a meeting recently took place with the UK authorities. The matters put to the Commission on that occasion are under consideration. We placed a number of issues before the Commission which demonstrated that the Directive has not been properly implemented. The Commission consolidated our contribution with others to create the basis for formal proceedings.

For example, section 14 allows judges to order rectification or not as they please; they have total freedom. This is in conflict with the Directive which is clear that data subjects have a guarantee that inaccurate personal data will be rectified.

The Children and Family Court Advisory and Support Service (CAFCASS) are able to write reports which cannot be challenged in English Court using data protection legislation. They cannot be challenged in the Family Court where CAFCASS reports are lodged because Family Courts cannot consider data protection matters which, in our view, is quite right. There is no duty on CAFCASS to allow reports to be subject to data protection legislation before they are presented to the Family Court and the county courts and High Court will not hear data protection actions because they deem that the matter has been considered in the Family Court (where you cannot use the guarantee granted by the Directive).

Clearly, this is an unsustainable position. Effectively CAFCASS has been able to exempt itself from the Data Protection Act 1998.

The Office of the Information Commissioner says that CAFCASS are not exempt which is correct. However, as it is impossible to bring an action for rectification in an English Court, they are exempt; in theory, they are not; in practice, they are and it’s practice that matters.

Note: The Information Commissioner has no interest in whether the Directive has been properly implemented or not.