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Mr S Leech & Mr W Tyzack (for judgment only) (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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MR JUSTICE RODERIC WOOD:
Inner London Juvenile Court sitting at Old Street Magistrates' Court on 4 May 1927. The respondent to the application is the Registrar General.
Relevant Statutory Provision
"(1) The Registrar General must make traceable a 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 (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 [i.e. 30 December 2005] the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in (3) to a person."
The relevant words for the purposes of this application are "in exceptional circumstances".
(i) The words "in exceptional circumstances" should be construed in the same way as Thorpe J as he then was, construed similar but by no means identical wording in section 50(5) of the 1976 Act. See paragraph 28 below.
(ii) She seeks to establish that her case thus qualifies by that or, indeed, any definition of exceptional. See her statement of 29 December 2009, paragraphs 6 to 12 and see below.
(iii) She further seeks to persuade the court that the exclusion of blood line descendants of an adopted person from those who have greater ease of access to the material she seeks are unfairly discriminated against. See below.
(iv) She raises issues about the practices relevant to applying to the courts which made the adoption, and the tests they are said by her to appear to be applying to disclosures, and how her own father's file having been lost, she is discriminated against by the test of exceptionality applicable to her instant application by virtue of the provisions of section 79(4) of the 2002 Act.
(v) She also raises issues under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 hereinafter referred to as "the convention" substantially but not wholly incorporated into English law by virtue of schedule 1 of the Human Rights Act, 1998.
(i) The words "in exceptional circumstances" are clear; they should not be diminished in their force and effect by judicial interpretation.
(ii) This particular case does not qualify as exceptional.
(iii) Insofar as bloodline descendents are not given the same opportunities for access to documents of the relevant type as those statutorily permitted categories, this was no accidental oversight by parliament, that there is no lacuna in the statutory framework, and that it is not open to the courts to alter that statutory framework by interpretation or to remediate the consequences of any perceived unfair lacuna by interpretation of the words "exceptional circumstances". I need not here further set out in extenso the other matters argued by the respondent for I shall deal with them more fully below.
I extend my apologies to both parties at this point if in giving the above summaries, I have not done justice to their respective documents, arguments and felicity of language.
The applicant's reasons
"I believe the birth information which I am missing, would restore my sense of identity and belonging. Not knowing who he really was has been a very difficult psychological hurdle for me to overcome."
In due course, I shall turn to a short passage of the written submissions put in by her counsel which elaborates some of these matters.
"(16) Just like the adopted people themselves, their descendents also have a need to find out more about their genetic family history. This could be for a range of reasons, including the need to obtain family medical history or general information about the origins of their adopted relative and the circumstances of his or her adoption.
(17) Descendents can benefit a great deal from accessing information about their genetic origins. It can help people feel more connected and rooted, and provide a sense of belonging, helping bridge the past, present and future. It can help them understand why they have certain physical attributes and particular skills and abilities. It can also help people understand some of the adversities they have faced in life, for example, if someone suffered from depression and learnt that their great grandfather committed suicide."
"Section 98 of the Adoption and Children Act made a provision so that birth relatives of an adopted person could request an intermediary service [services to help relatives obtain information about the adoption or to facilitate contact]. The same provision applies to an adopted person. The definition of a birth relative is 'a relative in relation to a child means a grandparent, brother, sister, uncle or aunt, whether of full blood or half-blood by marriage or civil partnership'. This definition therefore, does not include descendents of adopted people." [See section 144 of the 2002 Act]
I accept that that is, indeed, the case by virtue of that statutory provision.
"During the consultation process for the Adoption and Children Act, 2002 there was no suggestion that descendents of adopted people would not be defined as a birth relative in law." [See paragraph 21 of her statement]
"It is, therefore, concluded that descendents of deceased adopted persons should be included in the definition of birth relative and be permitted equal access to services offered to other birth family members under section 98 of the Adoption and Children Act 2002."
"It is a fundamental principle that on coming into force, an act of parliament is the expression of the will of the sovereign legislature and overrides inconsistent provisions of pre-existing law, whether statutory or not."
and that the words of a statute are to be given their plain meaning. See for example, various speeches in Pinner v Everett  1 WLR 1266 at 1273, Associated Newspapers Limited v Wilson  2 WLR 354 at 362, McCormick v Horsepower Limited  1 WLR 993 at 999 and McCarthys Ltd. v Smith  3 All E.R. 325 at 332 and finally, the words of Bingham J. in R v Benson  2 All E.R. 65 at paragraph 18. I need not set out the citations in full but incorporate them by reference only.
The 1976 Act
"The burden upon the applicant should be no heavier than the ordinary burden to show cause by establishing a case of sufficient weight and justification so as to persuade the Judge of the reasonableness of the order sought."
He approved and adopted that submission and regarded it as being the relevant test.
"I accept that following Re H [above] I do not look for exceptional circumstances, I have to look for a case of sufficient weight and justification to persuade me of the reasonableness of the order sought."
NB. The statutory provision in the 1976 Act did not include the phrase "in exceptional circumstances"
NB (2). The above quotation suggests that Cazalet J. regarded the test provided by Thorpe J to be the appropriate one.
"Given the requirement of the shifting process and the drafting of the Adoption Act, 1976 as amended by the Children Act, 1989, it seems to me that when dealing with an application of this nature and applying the appropriate test, the court must look for something beyond what might be an understandable emotional desire in any birth relative to obtain information about an adopted child. In my view, it involves something more than the strongly held wish to know or the strong underlying curiosity to find out. There must be a need or benefit which must relate to the adopted person rather than to the birth family."
NB. I remind myself, as Mr Vavrecka rightly urged me to, that the facts of the case being considered by Cazalet J. were vastly different from those I am considering.
NB (2). It seemed to me on a complete reading of this decision of Cazalet J, that he was not strictly speaking following what might be perceived to be the less rigorous test of Thorpe J. in Re H but was adding to the application of that test an extra layer of difficulty for an applicant.
"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 section 50(5) of the Adoption Act, that is to say the precise words of the sub-section:
'... 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 the following courts...'
It seems to me that the use of the word 'shall' coupled with the use 'except in accordance with section 51 or under an order' imports an element of the exceptional into the situation.
This is not as Cazalet J. made clear at 715(f), the situation where a court would deal with a matter simply on the basis of 'emotional desire in any birth relative to obtain information...it involves something more than the strongly held wish to know or the strong underlying curiosity to find out. There must be a need or benefit which must relate to the adopted person rather than to the birth family.'
I am not concerned with the phraseology endorsed by Thorpe J. in Re H might be perceived as indicating the situation which is less than wholly exceptional. Frankly, and speaking for myself, I would endorse the submission made by Mr Blake on behalf of the Registrar General in the case of Re H.
I believe that it would have to be a truly exceptional circumstance if the confidential registers and books were to be open to anybody in the case of an adopting trial. 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."
See page 722 letters (c) to (h).
"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."
Thus as can be seen, he differed from the formulation in Re H above of Thorpe J. and accepted the refined version of the test propounded by Cazalet J. in Re D (see above).
(i) If it were, I would expect to see it in the statutory provision and;
(ii) If it were this category of application (to name but one group) would never succeed, because the adopted person is dead.
I do not, however, doubt that the question of an advantage to the adopted person may well be a factor, and a powerful one at that in considering such applications when that adopted person is still alive.
Other court's practices
(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.
"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."
"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, and 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, suggest that there is little if any purpose to maintain confidentiality from the viewpoint of those who imparted the information. Balanced against this is the general interest of 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."
"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 and the integrity of confidential information supplied during the adoption process to be undermined. Obviously, great care is needed before confidential records are disclosed. The problems is not a new one. It is not uncommon for a balance to have to be struck between disclosure and maintaining a confidence."
I respectfully agree with that proposition.
Article 8 of the Convention
"(l) The applicant's request for disclosure engages Article 8 of the European Convention on human rights. The right to respect for a person's private life under Article 8 comprises the right to identity and respect for private life requires that everyone should be able to establish details of their identity as individual human beings. [See Gaspian v United Kingdom  FLR 167, Miklovic v Croatia  1 Fam CR 720] The information contained in her late father's birth certificate clearly affects the applicant's own identity as her knowledge of her paternal line is incomplete without it."
"It is submitted that if the court does not order disclosure then this would constitute a breach of Article 8, paragraph 2 on the grounds that the interference with the right to respect for her private life, namely, non-disclosure of the birth certificate is not proportionate to the assumed need of protecting the rights and freedoms of others. As stated above, a substantial amount of time has passed since the applicant's father was adopted. The information contained in the requested birth certificate can be disclosed without fear that it would constitute a breach of the third party's Article 8 rights."
(i) There is, by definition, no evidence before me of whether or not WC had siblings in this birth family, whether or not they knew of him, what circumstances led to him being placed about which the birth parents may have good reason to keep information from their descendants.
(ii) In addition, it is not possible to assert with confidence that non-disclosure of the birth certificate is not proportionate, for it is quite clear from the applicant's own statement (see section C pages 14 to 15, paragraphs 14 to 16 inclusive) that the provision of the information to her would be but the start of the detailed and determined search, not just for information but also, if they so wished, leading to introductions to any surviving relatives from her father's birth family.
Steps taken by FKL
"Although it was my father who was adopted and not me, the void created by his unknown background has effective 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.
That is my judgment: