Case No: FD10A00034

Neutral Citation Number: [2010] EWHC 3520 (Fam) 
IN THE HIGH COURT OF JUSTICE 
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 24 May 2010

BEFORE:
MR JUSTICE RODERIC WOOD

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BETWEEN:

	F L	Claimant/Respondent	
	- And -		
	Registrar General	Defendant/Appellant	

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Mr Vavrecka (instructed by McMillan Williams) appeared on behalf of the Claimant

Mr S Leech & Mr W Tyzack (for judgment only) (instructed by Treasury Solicitors) appeared on behalf of the Defendant

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Judgment

MR JUSTICE RODERIC WOOD:  

The Application

1. This is an application by FKL, the daughter of WC, who was adopted by an order of the 
Inner London Juvenile Court sitting at Old Street Magistrates' Court on 4 May 1927.  The respondent to the application is the Registrar General.

2. FKL seeks the disclosure of information from the Registrar General which would enable her to begin the process of finding more about her father's birth family.

3. The application is issued pursuant to Rule 105(1)(b) of the Family Proceedings Adoption Rules, 2005.  It involves a point of construction in relation to section 79(4) of the Adoption and Children Act, 2002 hereinafter referred to as "the 2002 Act".

4. Although similar territory has been traversed in relation to the statutory predecessor of the 2002 Act, namely in relation to section 50(5) of the Adoption Act, 1976 hereinafter referred to as "the 76 Act", it is thought that there is no reported case on section 79(4) of the 2002 Act.

5. The Registrar General has no discretion in the matter of disclosure, he can only disclose material in this case if ordered so to do by the High Court. 

Relevant Statutory Provision
6. Section 79 of the 2002 Act reads:
"(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".

The arguments

7. In summary, the applicant seeks to argue, subject to what follows, that:
(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.
8. The Registrar General in the summary argues:
(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.

Background

9. As stated, WC was born on 6 July 1923 and was adopted out of his birth family on 4 May 1927.  He died on 6 September 1999.

10. The applicant was born on 14 December 1947.  She married in 1967 and left England to start a new life in South Africa in 1976.  The applicant, however, retained strong family ties with the United Kingdom, two of her own children living here.  

11. Little is known by the applicant and WC's surviving family, her own mother having died in May 2003, about his earlier life and his adoptive family, and nothing is known about his birth family.  In his lifetime it was not possible to make enquiries of him because of his irascible and forbidding temperament and as far as is known, his own lack of interest for whatever reason, or, indeed, refusal to be interested in, his own past.

12. All the applicant has relating to her father is the revised birth certificate, a certified copy of the entry in the Adopted Children Register for 1927, and his death certificate.  The court where he was adopted (see paragraph 1 above) no longer exists, its files were transferred some 10 years ago to the Gee Street Court on the edge of the City of London, but a search of their archives by the court librarian has proved fruitless, even though tantalisingly other files of the same vintage have been located.

The applicant's reasons

13. In a number of moving paragraphs of her statement of 29 December she sets out her reasons for seeking the information from the Registrar General.  I shall summarise them, although I shall deal with them a little more fully in due course.  Turning to section C, page 13, paragraph 6 one finds there, and in succeeding paragraphs up to and including paragraph 12, her view.  She would wish, understandably, to know more of her father and in order to achieve that goal must have the information which the Registrar General currently holds.  She believes her father suffered from mental health problems which may have been exacerbated by his adoption.  She describes how his behaviour impacted on both her and the wider family, that he was a jealous, aggressive and obsessive man with low self-esteem and feelings of inadequacy.  He was controlling and wished to be the centre of attention.  He readily flew into rage.  Substance abuse as it is called, in fact alcohol, killed him he being diagnosed at his death with cirrhosis of the liver.  She describes the impact of her behaviour on her childhood, the fear in which she, her sibling and her mother lived, and the shame brought upon the family by the father's behaviour.  She hopes that by learning more of his birth circumstances that she would begin the process of what she calls "healing and forgiveness", albeit posthumously.  She describes in the final one of those paragraphs namely number 12, her own struggle to overcome the consequences of her father's character, temperament and behaviour, but how there is yet further to go and it is her hope that access to this information will be the key to that journey.

14. In a number of paragraphs following on she describes what she will do with the information.  I turn to section C, page 14, paragraphs 13 to 16.  It is only necessary to summarise them but what it amounts to is that she will use the information to spread the net of inquiry further and either on her own or with the assistance of an agency can begin to piece together the background of her father.  For instance, she would wish to know why his own mother gave him up, what circumstances forced her to do this, why was he taken in by an elderly couple as his adoptive parents appeared to be, and was he related to them by blood?  She would wish to locate any descendents of her birth relatives on her father's side.  It would help her, she says and, indeed, her own children understand their roots and identify family resemblance, talents and skills.  Finally, in paragraph 16 she says:
"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.

Further information

15. In support of her case, she has filed a statement dated 16 December 2009 authored by Mrs Julia Feast.  That author, having established her professional qualifications and her post with The British Association for Adoption and Fostering, frequently and commonly known by its acronym BAAF and details of her experience, goes on to set out a number of considerations which she, Mrs Feast, submits should weigh heavily with the court when construing the legislation and when contemplating the legislative and social climate in relation to the law and practice of adoption and in exercising judicial discretion.

16. She emphasis the increased and increasing "transparency" of the adoptive process and the very significant changes in recent years granting the adopted greater access subject to the statutory regime to information about their birth families and the perceived significant psychological advantages to the adopted of acquisition of this information.

17. Mrs Feast also deploys summaries of research projects undertaken in recent years as well as anecdotal evidence to support her assertions as to the above perceived advantages.

18. In paragraphs 15 to 18 of her document she sets out those perceived advantages but this time in relation to descendents of the adopted person.  In obtaining information, in part in paragraphs 16 and 17, she summarises those perceived advantages and benefits as follows:
"(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."
19. She also states aspects of the recent legislation, including the 2002 Act, and the legislative process which led to its passing, asserting in paragraph 19 of her statement the following:
"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.

20. However, she goes on to say that in consequence, the descendents of the adopted person are unfairly discriminated against and that:
"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]
21. Finally, in paragraph 26 she asserts the following:
"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."
Discussion

22. May I say at the outset of this section that I am grateful to both counsel and also the applicant's solicitor, Mr White, a very experienced and if I may say so, distinguished specialist solicitor in this field for the clarity of their written submissions.  I hope they will all forgive me, interesting as it was for me to trace the legislative history of the provision I am construing and the background to the statutory development, if I do not here set it out in the extensive detail they have provided to me, save is strictly required for the purposes of my decision.

Statutory construction

23. Mr Leech for the Registrar General submits that in construing the statutory provision:
"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 [1969] 1 WLR 1266 at 1273, Associated Newspapers Limited v Wilson [1995] 2 WLR 354 at 362, McCormick v Horsepower Limited [1981] 1 WLR 993 at 999 and McCarthys Ltd. v Smith [1979] 3 All E.R. 325 at 332 and finally, the words of Bingham J. in R v Benson [2005] 2 All E.R. 65 at paragraph 18.  I need not set out the citations in full but incorporate them by reference only.

24. Mr Leech also submits if the words are clear there is no need to trace the legislative genesis nor, indeed, research, white papers, draft bills, debates, correspondence, etc.  This is not, he says, a case where the "rule" in Pepper v Hart [1993] AC 593 comes into play, for there is no ambiguity in the words I am construing.  I respectfully agree with his submissions and approach my task on that basis.  Although, I have considered for reasons which will become apparent, some authorities on earlier statutory provisions.  See in particular but not exclusively, paragraphs 28 to 37 below.

Lacuna

25. As to the submission of the applicant that I should, in effect, find that there is a lacuna in the statutory framework and interpret the provisions more sympathetically in the case of the statutory excluded group, it is necessary to set the scene a little more carefully than I have done earlier.  

26. The 2002 Act does not include descendents of an adopted person within the statutory definition of birth relatives (see above) and they fall outwith the structures available to such statutorily defined birth relatives in gaining access to information about the adopted person.  See section 98 of the 2002 Act.

27. I do not share the view in what I have perceived to be the applicant's implied invitation to me, that it would be open to me and appropriate for me to approach the issue as if FKL and those in a similar position to hers should rightly have the opportunities granted to the defined categories, and that I should consider section 79(4) of the 2002 Act on the basis that such an applicant should be viewed more favourably in construing the expression "exceptional circumstances", than would be the case of complete strangers.  It is not, in my view, for me to in effect, rewrite the plain words of section 98 of the 2002 Act so as to include such acts nor, indeed, should I approach the case as if it were some Parliamentary oversight and make allowance for the omission.  This is pre-eminently a matter for Parliament.  Until Parliament does address that issue, if it ever chooses so to do, I must continue to recognise that for whatever reason, which I decline to speculate upon, Parliament intentionally left such a group out of the definition which had they been included would have afforded them different rights and different routes to obtaining information.  Nothing I say in this judgment should be read as indicating any view on whether or not this group should be so included within the definition in section 98 of the 2002 Act.  

The 1976 Act

28. As earlier noted it was the submission on behalf of the applicant in the written documents provided that, as I understood it, I should construe the phrase "in exceptional circumstances" in a manner consistent with Thorpe J's (as he then was), interpretation of a similar but not identical provision in section 50(5) of the 1976 Act.  In Re H (adoption:  disclosure of information) [1995] 1 Fam. C.R. 546 Thorpe J. construed the earlier legislative provision.  In that case he was assisted by the submissions of Mr Christopher Blake of counsel for the Registrar General and Mr Andrew McFarlane Q.C. (as he then was), now McFarlane J. for the applicant group.  Thorpe J. quoted, in effect, a submission of Mr McFarlane that:
"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.

29. In his oral submissions to me, Mr Vavrecka, appearing on behalf of the applicant seemed at times to be shifting away from such an approach and emphasising that I can only look at the strict wording of the statute and construe the word "exceptional" accordingly.

30. Assuming for the moment that the submission outlined in paragraph 28 above remains, however, for me to consider the Registrar General submitted that to do so would be not only to ignore the plain words of the 2002 Act but would also ignore what he submitted were the two relevant and persuasive authorities, that of Cazalet J. in D v Registrar General [1996] 1 FLR 707 and the appeal to the Court of Appeal arising from the same case, also reported as D v Registrar General [1997] 1 FLR 715, the constitution of the Court of Appeal comprising Sir Stephen Brown, the President, Pill LJ. and Sir Patrick Russell.  

31. In the first case, Cazalet J. was considering, as had Thorpe J. before him in the case of Re H (see above), the provisions of section 50(5) of the 1976 Act, in the context of the refusal by a Local Authority holder of adoption records to release in favour of the birth mother, who was seeking information from the Registrar General following on from the Local Authority's refusal, in order to discover non-identifying information about the daughter she had placed for adoption many years before.

32. Cazalet J said this:
"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.

33. However, he went on to say:
"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.

34. The Court of Appeal decision in the same case, D v Registrar General [1997] is also reported in [1998] Fam, page 19, et sequenta but I shall refer to the report in the Family Law Reports because Mr Leech has pointed out a crucial error in the family reports at page 27 where an erroneous double negative is used to miss-describe the court's observations on the decision of Cazalet J. in the court below.

35. The President gave the lead judgment and the other two members of the constitution agreed with him.  In upholding Cazalet J, they approved his approach as set out in the quotation at paragraph 33 above.  The President went on to say this:
"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).

36. Later in his judgment at 723 (a) to (b) he observed:
"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).

37. Although the factual matrix of Re D was wholly different from the one I am considering and the statutory provision itself is different, I have included these extensive quotations to show, if nothing else, the degree of caution with which the Court of Appeal approached the exercise of discretion as a matter of public policy.  

38. As is obvious by now to any reader of this judgment, the 2002 statute has by the inclusion of the words "in exceptional circumstances" narrowed the test from that set out in section 50(5) of the 1976 Act and appears more in line with the observations of Sir Stephen Brown the President in Re D above.

39. I have in setting out these passages and reading the decision in Re D in its totality considered the point therein made that in those cases the court was considering also the issue of the advantage, or potential advantage, to the adoptee.  That, of course, is not a feature of relevance in the instant application and I do not for my part, regard the issue of an advantage to the adopted person as an essential requirement of any test before permission can be given under section 79(4) of the 2002 Act for the two following reasons.
(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

40. I was, when first reading the submissions of the applicant, interested to see if 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, be that the Magistrates Court, the County Court or the High Court, pursuant to the relevant provisions of the Adoption Rules and/or Magistrates' Court Adoption Rules of whatever vintage is relevant), be that under the 84 or the 2005 rules.  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 section 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 if I did choose to say in this judgment on the subject it 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 who may well be faced with an upsurge in applications like this one under the 2002 Act, if consistency of approach by those courts leads to more refusals of such requests, 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.

Confidentiality

43. Mr Vavrecka has drawn my attention to the decision of Gunn-Russo v Nugent Care Society & Secretary of State for Health [2001] 1 FLR 1 a decision of Scott-Baker J as he then was on considering an application for judicial review.  The decision itself does not address directly the precise question I am considering but in Mr Vavrecka's submission it traverses similar terrain in one sense, namely, if I have understood his submission and proposition deriving therefrom correctly, that a court, or in that case an agency, holding relevant documentation should in exercising its discretion look in a broad se, where the file contained classified material, needs still to be protected.

44. Two passages in particular are said by Mr Vavrecka to be relevant, although I emphasise that the context of them set out between paragraphs 46 and 55 of the report has been considered by me.

45. The first relevant paragraph for these purposes is number 48 of the judgment:
"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."
46. The second relevant passage in my view is the closing part of paragraph 53 of the judgment:
"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."
47. That was not the end of the learned judge's consideration of this issue because in paragraph 54 he went on to say this, crucially as I find:
"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.
48. It does not seem to me that the presumed death of the adopters here, for WC's adoptive parents who would now been in their late 90s or early 100s, if alive, is or can be anything other than a relevant factor to be considered by the court, but that it is of one and many and must be viewed alongside amongst other features, public policy and the public interest in maintaining confidentiality, which I would add, is also not automatically determinative but which is a powerful consideration.  

Article 8 of the Convention

49. Article 8, paragraph 1 of the Convention gives the right to respect for private and family life to an individual.  By virtue of Article 8, paragraph 2 such rights can be the subject of intervention if such intervention is lawful, necessary and proportionate.

50. In his written submissions at section B, page 13(l) Mr Vavrecka invites my attention to the following:
"(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 [1991] FLR 167, Miklovic v Croatia [2002] 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."
51. In that same paragraph at (f) he then goes on to say this:
"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."
52. I regret to say that I consider Mr Vavrecka goes far too far in making such assertions.
(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

53. I take note of the fact that FKL has apparently exhausted all the lawful options available to her in her search for more information about her father, (see in particular section C16 paragraphs 17 to 23 inclusive).  I do not, for one moment, doubt the strength of purpose or the profound desire for information which lies behind FKL's search, but I do not think that the nature of that search and its many stages, and its failure to provide necessary information, helps me in determining whether or not her reasons are "exceptional".  I so say for there will be many, sadly, who find themselves in her position having exhausted all other remedies, but that does not of itself open the door of exceptionality.

Exceptional circumstances

54. I turn now to consider whether or not in exercising my discretion I should find that the matters put forward by FKL are exceptional or not.  In reaching my determination I have taken account of her statement of 29th December and the lengthy appendix to it, and exhibit FL2 called "life timeline" in which FKL includes much detail of harrowing experiences, both for her, her mother and her brother arising from the behaviour and described character of her father.  I have also considered the summarised reasons for her application set out at paragraph 52 of the document entitled "details of claim" to be found at section B, page 12.

55. I approach my task well recognising that to FKL and those most intimate with her, her husband who has been in court with her throughout this hearing, her children, other relatives and friends, will view these matters as subjectively exceptional.  If I may say so, no one reading her documents could fail to be moved by her account, but I have to look at these issues objectively and in the context of the wider public interest, not only the issue of confidentiality addressed by Scott-Baker J. in Gunn-Russo v NSC (above), but in all its aspects which include the interests of society and protecting the rights of potential third parties who might well be profoundly affected in due course by such disclosure.

56. The first advanced reason to be found at section C (13) paragraph 6 is that FKL would wish "to know more about my father".  This is, although entirely understandable, nothing out of the ordinary for it applies to any curious human being anxious to understand their forbearers and the effect those forbearers had in shaping their own genetic inheritance, possibly character and development.  

57. The "life timeline" document at section C28 to 32 contains, if I may say so, many examples of egregious behaviour by her father which impacted upon her mother, herself and her sibling and which may have been borne of the "mental health difficulties" to which she elsewhere refers.  They include examples of bullying, rudeness, financial irresponsibility, persistent excessive alcohol consumption with all its consequences, including such was the excessive nature of his consumption, cirrhosis of the liver, the condition from which he died, and many examples of aggression and intolerable behaviour.

58. It may come as a profound surprise to FKL and her family, her adult married life being so very different from her mother's and her husband being so supportive of her in her quest as I was well able to see when watching them throughout the court hearing last Friday, that what she has described, whilst profoundly shocking to the individuals concerned, does not in my judgment fall within the category of exceptional but is all too sadly a tale too often told, both within the forensic area and outwith.

59. FKL averts to unspecified mental health difficulties in her father and what she believes was an admission of her father to hospital following an assessment of him under the Mental Health Act, 1983.  She is not in a position, not having had sight of his health records, to inform me of whether that was a section 2 or section 3 admission nor, indeed, of any further details about it.  She wants to track his birth family's history to see if this "illness" (although I interpolate I do not know whether there was diagnosed any such), was hereditary and whether she and her brothers remained at risk of such problems.  There is no evidence of any kind put forward to suggest that she or her brother nor, indeed, any other member of her family, including her children, do suffer or have ever suffered from any such illness, and there is no evidence of further engagement with the mental health services referred to above.  Again, it is a surprise to many to hear of the statistically very significant percentage of the population who at one time or another in their adult lives will encounter first-hand as patients the mental health services or at second-hand, being associated with such a patient.  I regret to say that again, viewed objectively, I do not find this factor to fall within the category of exceptional.

60. Her father's behaviour, social isolation, his jealousy, aggression and obsessive nature may FKL speculates, have been "exacerbated" by his adoption.  Yet, sadly and all too evidently, many in society suffer from such characteristics and such behaviour and there is no obvious or necessary connection between them and adoptive status.  This too I do not regard as exceptional.

61. FKL says:
"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.

62. I do not feel the need to set out each and every one of the further matters she also lists, for they are essentially in their different formulations, variations on the themes illustrated above.  Neither singularly nor in their totality do these facts referred to in paragraphs 47 to 55 above amount in my judgment to exceptional circumstances, such that I would grant her the relief she seeks.

63. I do not for one moment doubt Mr Vavrecka's observations to be found at B12, paragraph 53, 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.

That is my judgment: