Child protection-related tragedies, including child deaths from maltreatment, frequently lead to extended coverage in the media and public calls for systemic reform and change. One of the most frequently sought-after reforms involves increased transparency and accountability within the child protection system. Theoretically, the more transparency within the system (i.e., the more aware the public is about what’s happening in day-to-day child protection work), the less likely that issues within the system will be overlooked or ignored until another tragedy occurs. Additionally, when a system has greater transparency, it also holds greater accountability for its actions (or inactions).
Suggested actions to improve transparency in child protection have included opening juvenile dependency court proceedings to the media and the public and unsealing court records.
Laws Protecting Client Privacy
On the other side of this call for transparency and accountability are data privacy laws. There are laws in place protecting certain pieces of data pertaining to children and youth involved in child protection. Agencies and their affiliates cannot talk to one another about these children or exchange information (e.g., medical records, school records) without signed release forms and/or specific court orders in place. There are exceptions for mandated reporting of child maltreatment (e.g., when a doctor reports suspected child maltreatment based on injuries s/he sees on a child under his care) and, in some instances, for child maltreatment investigations (see APA statement on HIPAA and child protection for more information).
The federal law governing confidentiality of health records is the Health Insurance Portability and Accountability Act (HIPAA) and the federal law governing confidentiality of school records is the Family Educational Rights and Privacy Act (FERPA). The Uninterrupted Scholars Act, recently signed into law by President Obama on January 14, 2013, amends FERPA and the parts of the Individuals with Disabilities Education Act (IDEA) pertaining to confidentiality in order to allow schools and institutions to share a student’s education records (without parental consent) with child welfare agencies who are legally responsible for the student’s care and protection. However, this new law also requires a court order to permit the school to share data with the child welfare agency. The point of this law, however, was not to improve transparency, but rather to ensure that children and youth in foster care face minimal disruptions to their education, with the goal of improving educational outcomes for children and youth in foster care.
Ethical Considerations Related to Transparency
Specifically, Open Courts & Court Records
In 2011, a judge in L.A. County’s Edelman Children’s Court proposed opening his courtroom to the public during juvenile dependency hearings in order to improve accountability and transparency. He added in his proposal that a judge could decide to close the proceeding if s/he thought it would be in the best interest of the child to do so. Foster youth and attorneys protested this proposal; one former foster youth, Lucias Bouge, said:
Kids laughed at me because of the way I talked, because my family was poor and because I was different from everybody else. Now imagine my classmates seeing my family life blasted in the morning paper. The torment I would have endured would have been traumatizing. (Source: LA Times)
The judge opened his court to the media (not the general public—certain exceptions applied) in 2012, despite concerns about invading the privacy of children who were victims of maltreatment. In early 2014, a California appeals court ruled that the judge should not have opened these hearings to the public, saying that the blanket order hindered the ability of individual judges to decide on a case-by-case basis whether members of the public with legitimate interests could attend hearings. The appeal was made by a 15-year-old girl; part of her lawyer’s argument was related to her concern that her personal information—including details of her abuse by her stepfather—would be made public.
Open Court Policy in Minnesota
In Minnesota, with the exception of adoption proceedings, juvenile protection hearings are open to the public (Minn. Stat. 260C.163(1)(c)). A judge can order a hearing closed, but under “exceptional circumstances.” There are also certain court records not accessible to the public or the parties involved, including victim statements, anything identifying a reporter of maltreatment, and anything identifying the location of a child’s court-ordered placement.
For more on open courts, including a more detailed view of how Minnesota came to have an open court policy, view this report from Fostering Media Connections: A Watched System: Should journalists be granted access to juvenile dependency court proceedings?
Personal Reflection
Over the summer I happened to be perusing a newspaper section listing court proceedings (mostly to see what types of court proceedings are generally listed), when I came across a juvenile dependency court proceeding that listed not only the full name of the mother who was alleged to have maltreated her children, but also the children’s names. While I knew that these court proceedings were generally open to the public in Minnesota, I was still a little dismayed to see children’s names attached to a public posting on a child abuse hearing. As unlikely as it might be for these children’s friends to be flipping through postings on court proceedings, anyone who might know any member of this family would now know what was going on in these children’s lives. Should these children be made aware of their private lives being made public, it could further compound the trauma that these children have already experienced.
Transparency/accountability and privacy rights, particularly those of children, should require equal consideration in our calls for systemic reform. It is important to strike a balance between the two concepts, rather than sacrifice one for the other.