Surveillance and Monitoring Methods in the Foster Home Setting

Surveillance and monitoring devices includes facilities such as CCTV (both with and without voice-recording) and baby monitors.

Baby monitors are regarded as a listening device unless they are being used to monitor the welfare of a baby when adults are not present, e.g. when a baby is sleeping during the day.

CCTV: is closed-circuit television system on a private network. Footage is monitored mainly for surveillance and security purposes. The system uses strategically placed cameras that send the images to monitors placed elsewhere.

The Information Commissioner's Office advises that, whilst use of a domestic CCTV system may be appropriate, publicly uploading or streaming footage of identifiable people would need more justification. In most cases it would not be justifiable.

Note that audio-recording is considered as being particularly intrusive and so should be avoided unless there is a clear reason for it.

Monitoring of personal electronic devices: this includes monitoring the use of a child's own laptop, desktop, tablet, mobile phone or any other personal electronic device. This must be carried out with their permission.

It is permissible to monitor online activity if it relates to the use of filters and monitoring the effectiveness of those filters to protect children from exposure to inappropriate online material and contact.

(Please note: online filters should not be used as substitute for on-going discussions with children in the foster home about their online activity and how they can keep safe. See also: Internet, Photographs and Mobile Phones Procedure).

Covert Surveillance: Important note - only a court can sanction covert surveillance. This is where the monitoring of an individual is carried out in a way they are not aware of. This might include equipment such as hidden cameras and /or listening devices or secretly following the person. The Regulation of Investigatory Powers Act 2000 governs the use of covert surveillance by public bodies.

See also: Domestic CCTV systems - Guidance for People Using CCTV (ICO)

Before installing or operating CCTV in the foster home, there are various considerations to be taken into account. Discussions will need to take place with the placing authority prior to placement as to the appropriateness of use of CCTV in relation to each child to be placed.

In addition, different considerations apply depending on whether the CCTV will capture images exclusively within the foster home or whether it will also capture images extending beyond that.

If the system is set up so it captures only images within the boundary of the foster carer's private domestic property (including your garden), then the data protection laws will not apply. This applies to video doors bells.

However, if the system captures images of people outside the boundary of their private domestic property – for example, in the foster carer's neighbours' homes or gardens, shared spaces, or on a public footpath or a street, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18) (the 'data protection laws') will apply, and the foster carer will need to ensure your use of CCTV complies with these laws.

Regardless of whether or not  the use of CCTV falls within the data protection laws, the Information Commissioner's Office (ICO) recommends  that it is used responsibly to protect the privacy of others.

If a foster carer  fails to comply with your obligations under the data protection laws, they may be subject to enforcement action by the ICO. This could include a fine. You may also be subject to legal action by affected individuals, who could pursue court claims for compensation.

However, the ICO state that, if you have followed their guidance and taken all reasonable steps to comply with your data protection obligations, the ICO is unlikely to regard you as a regulatory risk and would be unlikely to think that taking enforcement action against you was a proportionate use of its resources.

f the foster carer has a system which only captures images within the boundary of their private domestic property (including your garden) such as video door bells, then the data protection laws will not apply to them. However, when considering any use of surveillance and monitoring in the foster home, it is important to balance the rights and freedoms of children, visitors and foster carers with the need for and purpose of the surveillance.

Children are always best kept safe where communication is conducted within the framework of face-to-face relationships between child and foster carer.

Where it is identified within the care planning process that an electronic surveillance or monitoring method is necessary to safeguard the child, the consent of the Social Worker, parent and child must always be sought and all parties advised how they can make a complaint about its usage if necessary. The usage of any device must be formalised within the child's Care and Placement Plan, subject to regular review and for the minimum time necessary to achieve the child safeguarding purpose.

In practice, the usage of an electronic surveillance and monitoring methods within the fostering setting is likely to be limited to parent and baby foster placements through the occasional use by the foster carer of an audio or audio-visual monitor. Families will always be informed when the monitor is being used and will be invited to see and hear what the foster carer can see and hear on the device. Usage should be confined to the early stage of the placement and for the minimum period necessary to achieve the child safeguarding purpose. Where a visual monitor is used, this must be focussed on the baby's cot and must never be used to observe any other part of the room.

The practice of covert surveillance – surveillance carried out without the knowledge of the person being monitored – is not permitted within the fostering setting or any other care setting provided by Break.

The Surveillance Camera Buyers Toolkit suggests completing the following prior to installation and use of a surveillance system:

Statement of Need

This should consider what is the purpose of the surveillance/monitoring, and could that purpose be achieved by other means? Is a surveillance/monitoring system the most appropriate solution?

Risk Assessment

This should consider what are the risks to data subjects raised by the deployment of surveillance cameras? Is the impact on individuals' rights and freedoms proportionate to the problem that is being addressed? Can the risks be reduced to an acceptable level?

The use of surveillance and monitoring systems within the foster home should be discussed prior to placement of children in the foster home, and its appropriateness considered in relation to any child to be placed in the foster home. Any amendments to the nature of the monitoring or surveillance must be discussed in advance with the placing authority. This information should be recorded in the child's Placement Plan.

The following should be considered:

• The legitimate purpose and aim of the surveillance, with each purpose and activity individually addressed;
• How the surveillance will keep children safe;
• Why surveillance is the best way of achieving a child's safety;
• How any data is processed and stored;
• What security measures are in place to safeguard against unauthorised access and use;
• How often the surveillance activity will be reviewed to ensure that it is still necessary;
• How surveillance and monitoring activities are agreed and recorded with the placing authority, parents, carers and children (if appropriate);
• How others (for example, health visitors) are notified that they are being recorded.
• What to do when people ask for access to recordings;
• How and when to share information;
• What to do if there are complaints about surveillance;
• What to do if children or parents withdraw their consent to surveillance.

If the system captures images of people outside the boundary of your private domestic property – for example, in the foster carer's neighbours' homes or gardens, shared spaces, or on a public footpath or a street, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18) (the 'data protection laws') will apply, and the foster carer will need to ensure their use of CCTV complies with these laws. Good practice includes consulting with anyone who may be affected by the surveillance before its installation.

As the CCTV user, the foster carer are a 'data controller' and will need to comply with your legal obligations under the data protection laws.

The foster carer can still capture images, but  the foster carer needs to show what they are doing it in ways that comply with the data protection laws and uphold the rights of the people whose images you are capturing.

The following should be adhered to:

• The foster carer should let people know they are using CCTV by putting up signs saying that recording is taking place, and why;
• Ensure the foster carers doesn't capture more footage than is needed to achieve your purpose in using the system;
• Ensure the security of the footage that is capture – in other words, holding it securely and making sure nobody can watch it without good reason;
• Only keep the footage for as long as it is needed – that it is deleted regularly, and when it is no longer needed;
• Ensure the CCTV system is only operated in ways it is intended and can't be misused for other reasons;
• The foster carer  also need to make sure that they respect the data protection rights of the people whose images are captured. This includes the following things:
• Responding to subject access requests (SARs), if the foster carer receives any. Individuals have a right to access the personal data that is held about them, including identifiable images. They can ask  verbally or in writing. The foster carer  must respond within one month and give them a copy of the data;
• Deleting footage of people if they ask you to do so. The foster carer should do this within one month. The foster carer  can refuse to delete it if you specifically need to keep it for a genuine legal dispute and this is in agreement with Break Charity – in which case the foster carer/placing authority  need to tell them this, and also tell them they can challenge this in court or complain to the ICO;
• Consider any objection you get now from particular people about capturing their image in the future. Given the nature of CCTV systems, this may be very difficult to do. However, you should again think whether you need to record images beyond your property boundary – particularly if your system is capturing images from a neighbour's home or garden;
• Surveillance/monitoring systems which covered neighbouring properties, albeit unintentionally, could be CCTV cameras and also features such as 'smart' doorbell cameras. Care should be taken to check the range of any such devices, and it should be noted that such devices are likely to capture audio footage at a greater range than video footage, therefore care must be exercised if audio capture is enabled on external devices.

The Surveillance Camera Buyers Toolkit contains an example of a Privacy Notice to inform people about surveillance.

The foster carer does not need to register with the ICO or pay a fee. However, records of how and why images are captured must be kept and for how long they will be kept. These records should be available to the ICO on request.

Images, and information should be stored securely, for their stated purpose, and only for as long as necessary.

Security arrangements for sharing footage, for example, when used as evidence in court hearings, should be discussed with the placing authority.