Sitting at BRISTOL
Strand, London, WC2A 2LL
B e f o r e :
|In the matter of X (Adopted Child: Access to Court File)|
Mr Alex Forbes (instructed by the Official Solicitor) as advocate to the court
Hearing date: 3 July 2014
Crown Copyright ©
Sir James Munby, President of the Family Division :
" my Grandmother is certainly dead by now, so I will not harm anyone by knowing her name I will not be trying to contact her relatives or causing any trouble.
I just want to know who my Dad was, who his mother was, where he was born, and who I am, my sister, my brother, my children and Grandchildren.
We have a child in our family my sister's Granddaughter she has epilepsy and is very disabled, where did that come from, is it likely to happen again.
In a while I will be going to my Father's grave to put flowers as it is his birthday and once again I will wonder who he was, did his Mother ever look for him, if she did she never found him, but I can find her, and put this story to rest once and for all "
"Hence we are not looking to object to an order under 79(4) if the Court deemed it appropriate."
The email indicated that it was unlikely to be necessary for there to be any attendance at the hearing on the part of the Registrar General.
i) The application of Mr and Mrs C to adopt X dated 1 January 1930. The application set out the name and address of X's mother and shows that X was by then living with Mr and Mrs C.
ii) The birth mother's signed consent to X's adoption dated 12 December 1929. This gives her name and address, as well as the names and address of Mr and Mrs C. Her signature was witnessed by her mother, whose address is also given.
iii) X's birth certificate. This gives X's names and the place where he was born, and his mother's name, employment and address (she was the Informant, registering his birth on 12 December 1929). The spaces for details of X's father are blank. The court file also includes a short form birth certificate for X.
iv) Notice from the court dated 2 January 1930 of the hearing on 15 January 1930.
v) A report by the County Education Secretary dated 11 January 1930, following the necessary enquiries in connection with the proposed adoption made by the County Education Office's School Attendance Officer, reporting amongst other things that "The means and status of the applicants are such as to enable them to maintain and bring up the infant suitably" and that "It is not considered necessary that the Court should be asked to impose any particular terms or conditions" in making an adoption order. The report also stated that the School Attendance Officer had been instructed to attend the hearing "for the purpose of giving any additional information which may be required of him."
vi) The adoption order made on 15 January 1930.
vii) Letters dated 17 and 23 January 1930 from the General Register Office to the Clerk to the Justices in relation to the registration of the adoption in the Adopted Children Register. (A copy of the certificate obtained by Y in 1989 shows that the relevant entry in the Register was made on 21 January 1930.)
viii) A letter which appears from its contents to have been written to Mrs C (by name) in December 1929 by X's mother's mother.
"(1) The Registrar General must make traceable the connection between any entry in the registers of live-births or other records which has been marked "Adopted" and any corresponding entry in the Adopted Children Register.
(2) Information kept by the Registrar General for the purposes of subsection (1) is not to be open to public inspection or search.
(3) Any such information, and any other information which would enable an adopted person to obtain a certified copy of the record of his birth, may only be disclosed by the Registrar General in accordance with this section.
(4) In relation to a person adopted before the appointed day the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in subsection (3) to a person."
I need not refer to the statutory definition of "the appointed day" in sub-section (9). Suffice it to say that X was adopted before the appointed day.
"Subject to the provisions of these rules, any practice direction or any direction given by the court
(a) no document or order held by the court in proceedings under the 2002 Act will be open to inspection by any person; and
(b) no copy of any such document or order, or of an extract from any such document or order, will be taken by or given to any person."
Where, as in the instant case, the adoption order was made not under the 2002 Act but under one of its predecessors, the matter is regulated by rule 53(4) of the Adoption Rules 1984, SI 1984/265, or rule 32(6) of the Magistrates' Courts (Adoption) Rules 1984, SI 1984/611, both of which remain in force by virtue of paragraph 4 of The Courts Act 2003 (Revocations, Savings and Transitional Provisions) Order 2005, SI 2005/2804. The relevant rule in each case provides as follows:
"Save as required or authorised by a provision of any enactment or of these rules or with the leave of the court, no document or order held by or lodged with the court in proceedings under the 1958 Act, the 1968 Act or Part I of the 1975 Act (or under any previous enactment relating to adoption) shall be open to inspection by any person, and no copy of any such document or order, or of an extract from any such document or order, will be taken by or issued to any person."
"It seems to me that it would be unwise and indeed unnecessary to seek to put a gloss, as it were, on the statute, but I am concerned that by the approach adopted by Thorpe J the language used does seem to suggest that something less than an abnormal situation might be acceptable for the making of such an order. In my judgment, it is necessary to have regard to the mandatory language of s 50(5) of the Adoption Act. That is to say the precise words of the subsection:
' the Registrar General shall not [mandatory] furnish any person with any information contained in or with any copy or extract from any such registers or books except in accordance with section 51 or under an order of any of the following courts '
It seems to me that the use of the word 'shall', coupled with the use of the words 'except in accordance with section 51 or under an order' imports an element of the exceptional into the situation.
I am concerned that the phraseology endorsed by Thorpe J in Re H might be perceived as indicating a situation which is less than the wholly exceptional."
The President added (page 723):
"I believe therefore that the situation of ordering disclosure should be approached with great caution. There is not of course a statutory test, but I consider that something requiring an exceptional 'need to know' the information which it is sought to obtain should be established."
"It may well be that as time has moved on the approach to adoption has become more relaxed. But it must be remembered that in this instance, the adoption took place as a fully closed adoption when a baby was settled into an entirely new family. It is impossible to speculate as to how this middle-aged lady might react to any inquiry however delicately made to the circumstances of her life which might reveal what to her are the unknown circumstances of her birth."
"61 FKL says:
'Although it was my father who was adopted and not me, the void created by his unknown background has affected me enormously.'
I do not doubt that for one moment, but it is an issue with which many in the population, even if I were to limit my consideration to the children or grandchildren of adopted persons, struggle with, and again, whilst recognising its profound sadness to her, it does not in my view qualify for exceptionality.
63 I do not for one moment doubt [counsel]'s observations that FKL's grounds for seeking this information are valid and cogent and for what it is worth, she has my profound sympathy as she struggles to come to terms with the perplexing riddles of the human condition, but that sympathy should not and cannot cloud my discretionary assessment."
"40 I was, when first reading the submissions of the applicant, interested to see the generalised assertion made with no supporting evidence (namely that in cases where the adoption files were still in existence, someone in the position of the applicant might apply to the court making the original adoption order ) My impression on reading this part of the material is that the advocate was suggesting that the approach of each court operating up and down the country was lacking in consistency and that the very procedure for making such an application, let alone the test applied to such an application when it was being considered, was lower than that required by s 79(4) of the 2002 Act. This impression was reinforced in the course of oral submissions made on behalf of the applicant.
41 Through Mr Leech, the Registrar General expressed his concern should indeed this be the reality (namely variable practice up and down the country) and in pursuit of some guidance and in the absence of any authority on the subject, and further bearing in mind that anything I did choose to say in this judgment on the subject would be obiter, he invited me to give my views on the desirability for, and the nature of, the proper approach to such applications in those courts.
42 Whilst having considerable sympathy both for the applicants to those courts and for the Registrar General I do not feel able to give any such guidance for the following four main reasons:
(i) the issue is not directly before me;
(ii) the assertion of variable practices is unsupported by evidence;
(iii) the issue is being argued before me tangentially since it is not at the heart of my inquiry and the exercise of my jurisdiction;
(iv) a number of interested parties might well, understandably, wish to intervene and make submissions.
For those main reasons, but they do not amount to an exclusive list of considerations, I decline the Registrar General's invitation and such an analysis must abide the event with a proper and fully argued case."
"47 As long ago as 1972 the report of the Departmental Committee on the Adoption of Children (the Houghton Committee) reported that the weight of evidence was in favour of freer access to background information and that this accorded with their wish to encourage greater openness about adoption The balance has continued to shift towards greater freedom of information to adopted people. It is now recognised that many adopted people wish to have information about their history and background including the reasons for their adoption. Many find it important to have a complete personal history in order to develop a positive sense of identity.
48 The issue will often be how to resolve the tension between on the one hand maintaining the confidentiality under which the information was originally supplied and on the other providing the information that the adopted person has a real desire, and often need, to have."
He said (para 53), that he was not concerned with whether a duty of confidentiality existed or exists, but whether it should be maintained in the claimant's case in the light of what he held was the adoption agency's "unrestricted" discretion under the relevant statutory provisions.
"53 It is, in my judgment, incumbent on an adoption agency exercising such a discretion to have in mind all the circumstances of the case. A very important, perhaps crucial, consideration in this case is the long passage of time since the adoption order was made. This, plus the fact that none of the relevant people other than the claimant is still alive, suggests that there is little if any purpose in maintaining confidentiality from the viewpoint of those who imparted the information. Balanced against this is the genuine interest to the claimant in receiving the information. Viewed on this basis it seems to me that the scales would be likely to come down firmly in favour of disclosure.
54 That, however, does not completely dispose of the problem, because there is still the public interest element in maintaining the confidentiality of adoption records. Clearly it would be unsatisfactory were public confidence in the integrity of confidential information supplied during the adoption process to be undermined. Obviously great care is needed before confidential records are disclosed. The problem is not a new one. It is not uncommon for a balance to have to be struck between disclosure and maintaining a confidence
55 In my judgment the [agency] ought to have looked at each document individually and asked itself whether there was any compelling reason why that document should not be disclosed. Most reasonable people would not I think feel that after half a century disclosure would be likely to impair public confidence in the integrity of the confidentiality of the system. After all a great many public records are now disclosed after a lapse of 30 years."
He went on to explain (paras 56-65) why Article 8 of the Convention, and the Strasbourg jurisdiction exemplified by Gaskin v United Kingdom (1990) 12 EHRR 36 (see now also Miklovic v Croatia  1 FCR 720) added nothing to the common law in this regard.
i) The court has a discretion whether to disclose information contained in its own file to the applicant.
ii) In considering whether or not to exercise that discretion the court should have regard to all the circumstances of the case and should exercise its discretion justly.
iii) The public policy of maintaining public confidence in the confidentiality of adoption files is an important consideration.
iv) The duration of time that has elapsed since the order was made, and the question of whether any or all of the affected parties are deceased, are important considerations.
v) The nature of the connection between the applicant with the information sought from the court file is an important consideration.
vi) The potential impact of disclosure on any relevant third parties, and any safeguards that could be put in place to mitigate this, is an important consideration.
I gratefully adopt that summary which, so far as it goes, is both apt and accurate.
i) The Registrar General, in light of the parliamentary consultation process, and seemingly irrespective of whether the test of exceptionality would be met under section 79(4), has indicated that he would not object to an order being made against him pursuant to section 79(4).
ii) The person to whom the confidential information relates (X's birth mother) is probably deceased.
iii) The adoption order was made over 84 years ago.
iv) Y has said she does not propose to use any information that is disclosed to her to approach any relatives of X's birth mother who might still be alive so she did initially, but as I have mentioned her stance subsequently shifted somewhat.
v) Y is X's biological daughter. She has a close and personal interest in the information sought.
i) Parliament has determined that a test of exceptionality applies to analogous provisions relating to applications under section 79(4). The test of exceptionality does itself take into account the important public policy considerations of maintaining confidentiality in the adoption process.
ii) Whilst the information sought by Y is undoubtedly important to her, the circumstances of the case are not exceptional.
iii) Parliament is in the process of consulting on this very issue, and the court should not be seen to be undermining, usurping or bypassing the functions of Parliament.
iv) Y is not the subject of the adoption order.
v) There may be relatives of X's birth mother who are still alive who could conceivably be affected by the disclosure sought.
i) The contents of the court file as I have summarised them in paragraph 11 above.
ii) The facts to which I have drawn attention in paragraphs 12 and 13 above.
iii) The fact that X, Mr and Mrs C and in all probability X's birth mother are all dead.
iv) The fact that X was adopted over 84 years ago.
v) The fact that Y is X's daughter.
vi) The fact, as I find, that Y's reasons for wanting access to this information are entirely genuine and understandable.
vii) The fact that any upset that might be caused to any of X's birth mother's surviving relatives is no more than speculative.
Note 2 Deficiencies in relation to the existing law and practice were identified in the Report dated 26 February 2013 of the Select Committee on Adoption Legislation, paras 272-274. In para 274 the Committee recommended that section 98 of the 2002 Act be amended to bring within its scope the direct descendants of adopted persons. Section 1 of the Children and Families Act 2014 enacts the necessary changes, by inserting a new Section 98(1A) in the 2002 Act. This provision is not yet in force and the relevant regulations have not yet been made. [Back] Note 3 Roderic Wood J in FL v Registrar General  EWHC 3520 (Fam),  2 FLR 630, para 34, gives reasons for preferring this report of the Court of Appeals decision to that in Re L (Adoption: Disclosure of Information)  Fam 19. [Back] Note 4 X was born in November 1929. Even assuming that Xs mother was only 15 years old when he was conceived a matter, I emphasise, of complete speculation she would now be 100 years old. The reality is that both she and any husband she may have married, whether before or after Xs birth, are in all probability dead. [Back]
Note 2 Deficiencies in relation to the existing law and practice were identified in the Report dated 26 February 2013 of the Select Committee on Adoption Legislation, paras 272-274. In para 274 the Committee recommended that section 98 of the 2002 Act be amended to bring within its scope the direct descendants of adopted persons. Section 1 of the Children and Families Act 2014 enacts the necessary changes, by inserting a new Section 98(1A) in the 2002 Act. This provision is not yet in force and the relevant regulations have not yet been made. [Back]
Note 3 Roderic Wood J in FL v Registrar General  EWHC 3520 (Fam),  2 FLR 630, para 34, gives reasons for preferring this report of the Court of Appeals decision to that in Re L (Adoption: Disclosure of Information)  Fam 19. [Back]
Note 4 X was born in November 1929. Even assuming that Xs mother was only 15 years old when he was conceived a matter, I emphasise, of complete speculation she would now be 100 years old. The reality is that both she and any husband she may have married, whether before or after Xs birth, are in all probability dead. [Back]