England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Cazalet)

		Royal Courts of Justice Strand London WC2
		12th December 1996

THE PRESIDENT: This is an appeal from a decision of Cazalet J made on 23rd November 1995.

     The hearing was in chambers, but the learned judge indicated that the judgment should be treated as having been given in open court. It is a case which is brought within a very sensitive area. The appellant, the applicant before Cazalet J, issued an originating summons directed against the Registrar General seeking an order that the Registrar General should provide information from his registers and records to enable a registered charity called the Post Adoption Centre to trace the applicant's adopted daughter P, who had been made the subject of an adoption order very many years ago. In point of fact P, the daughter, was born in 1959 and was adopted as a baby in 1960.

     At that time the adoption agency was the National Childrens Adoption Agency, referred to by the capital letters NCAA. In 1977, when P was 18 years of age, the applicant mother wished to obtain some general information upon a non-identifying basis of how P was progressing. As the learned judge, Cazalet J, in his reserve judgment described, she got in touch with her local Citizens' Advice Bureau and they, on her behalf, put her in touch with the National Children's Adoption Agency. That agency made discreet inquiries about P, and as a result of those inquiries a letter was written to the applicant on 26th July 1977 from the General Secretary of the adoption agency.

     The letter read:

"Dear Mrs D

I have now had a letter from P's adopters who are delighted to give you more news about her. She is not very academic, but does dress making, drawing and painting very well and as always been artistic. She is going to do an art course in September.

P is happy and secure and her adopters describe her as beautiful with a very steady temperament. She has always worked hard and has made many friends at school.

They will bear it in mind if she ever wishes to see you and will get in touch with us [that is the agency] should the occasion arise. At the moment, she seems singularly lacking in curiosity.

She is much loved by her brother and sisters, grandparents and all the extended family. It has been a very successful adoption."

The letter was signed by the General Secretary of the National Childrens' Adoption Agency.

     That was of course a very reassuring letter for the applicant, who was concerned as to the well-being and welfare of her daughter. It is quite clear from the terms of the letter that the girl had settled into the family, and it was of course the only family she had ever known, for she went to them, her adopted parents, as a baby. At the age of 18 she was apparently, well settled and developing well as a growing girl in the family.

     The applicant did not hear anything further, probably because as the letter had indicated at the time when it was written P: "Seemed singularly lacking in curiosity." But then in 1992 the applicant was minded to seek further information.

     In 1978 the Nation Childrens' Adoption Agency had closed and the adoption files which it held were transferred to the Westminster City Council. So that in 1992 it was to the Westminster City Council that the applicant made her request seeking updated non-identifying information about P, her daughter. In fact, the Westminster City Council did not, and were not, willing to seek such information. Indeed, as the documents before the court have indicated, in June of 1995 the social services committee of the Westminster City Council agreed to adopt a policy of not initiating contact at the request of a birth relative. The applicant's request for information was therefore refused.

     It is perhaps helpful to refer briefly to a passage in the report to the Westminster City Council dealing with this area. There is a passage which appears at page 27 of the court bundle, and it is paragraph 7.3.1 where the following is recorded:

"Practice considerations.

Despite the recommended precautions there remain some potential disadvantages to the option:"

One of the options being considered of providing information subject to controls as to how the information should be relayed and obtained. The report continues:

"It is sometimes difficult to establish what stresses there may be in an adoptee's life at a particular time (such as ill health of themselves or family, marriage, divorce, having a child, bereavement, work problems etc) and the effect that an initial contact by the Agency might have in these circumstances.

An adoptee may not know that they are adopted at all, or the information they were given may have been inaccurate. It is impossible to know the potential effect of suddenly finding out such information or the degree to which it would be a problem. However, none of the agencies who have initiated such contacts so far appear to have encountered this as a problem."

The report included information for the benefit of the members of the authority. For instance, that a number of councils had, in fact, adopted a policy similar to that previously operated by the NCAA. However, the request made by the applicant to the City Council was refused.

     The applicant then proceeded to issue an application in the High Court for an order under the provisions of section 50(5) of the Adoption Act 1976. The application was directed to the Registrar General. By it the applicant sought an order of the High Court that the Registrar General should disclose certain information to a particular agency in order that the circumstances of P could be investigated for the purpose of discovering, in an unidentifying manner, how she was faring.

Section 50(1) of the Adoption Act 1976 provides:

"The Registrar General shall maintain at the General Register Office a register, to be called the Adopted Children Registrar, in which shall be made such entries as may be directed to be made therein by adoption orders, but no other entries."

     Regulations are made under the Act and the Forms of Adoption Entry Regulations 1975 (which came into force in 1976) are the appropriate regulations. They are to be found in the very helpful red bundle placed before the court by both parties. If one looks at divider 5, one sees at the second page of divider 5 the form of entry in the Adopted Children Registrar. That provides for details such as might be found on an ordinary birth certificate. Indeed, it is sometimes referred to as the adopted child's birth certificate.

     The Registrar General is enjoined by section 50(4) of the Adoption Act 1976 to:

"in addition to the Adopted Children Registrar and the index thereof, to keep such other registers and books, and make such entries therein, as maybe necessary to record and make traceable the connection between any entry in the Register of Births which has been marked 'Adopted' and any corresponding entry in the Adopted Children Register."

By section (5)it is provided that:

"The registers and books kept under subsection (4) shall not be, nor shall any index thereof be, open to public inspection or search, and the Register General shall not 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, that is to say-

(a) the High Court;

(b) the Westminster County Court or such other county court as may be prescribed; and

(c) the court by which an adoption order was made in respect of the person to whom the information, copy or extract relates."

Section 51(1) refers to the disclosure of birth records of adopted children, and that provides:

"Subject to [what follows], the Registrar General shall on an application made in the prescribed manner by an adopted person a record of whose birth is kept by the Registrar General and who has attained the age of 18 years supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his birth."

There is no corresponding rule which would provide for the natural parent of an adopted person to obtain similar information which might lead to the identification or the whereabouts and circumstances of the adopted child.

In this instance, the applicant has sought from the court an order under section 50(5) of the Adoption Act 1976, that the Registrar General should provide the information in his records, which would make traceable the connection to a specified adoption agency in circumstances designed to preserve confidentiality.

     The learned judge heard the case -- very carefully presented to him by Mr McFarlane counsel for the applicant -- and in a carefully considered and sensitive reserved judgment refused to make the order.

     He said at page 18 of the transcript of his judgment at of letter C:

"I bear in mind also the way in which the Adoption Act 1976 is drafted such that, whilst a specific procedure is available to the adopted adult to make contact, subject to certain conditions, with the birth parent, there is no like procedure for the birth parent to make contact with the adopted adult. Indeed, when parliament gave consideration to providing the birth parent with some improved process of making contact with an adoptee, Parliament, through the Children Act 1989, set up the Adopted Children Register, and did not give the birth relative rights comparable to the adoptee under Section 51 of the Adoption Act 1976.

Given the requirement of the sifting 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 adult. 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.

It may be that the reluctance of Parliament to go no further in setting up the Adopted Children Register arose in part through a desire to protect the adopted status, such that an adoptee who declines to pass on information about himself on receipt of a first request from a birth parent does not thereafter feel vulnerable or unsafe from the possibility of further approaches. Even the request by letter for non-identifying information made on behalf of a birth relative to an adoptee (whose wish it is that no such information be given) may nonetheless cause some adoptees anxiety and concern (see reference already made to the Westminster City Council report).

P. has not seen fit to put her named on the Adopted Children Register. Although she may not be aware of her rights as to this, she does know that she is an adoptee and had she felt curious about her birth family (she was uncurious in 1977) she, no doubt, might have made enquiries and, as a consequence, have found out about the Adopted Children Register.

I do not consider that this case goes beyond what I regard as the understandable wish of a natural parent to learn of the progress of her child."

The learned judge referred to the only two decided cases which are reported in which the Registrar General was ordered to make disclosure. He said they arose in circumstances in which a particular need or benefit was established. He considered, with reasons which he gave in detail, that the present application should be dismissed.

     The applicant now appeals to this Court against the learned judge's dismissal of her application. Her counsel submits that in the context, in particular, of the fact that in 1977 the letter was written, to which I have already referred, the learned judge was wholly wrong and unreasonable in dismissing the application.

     Mr McFarlane recognises that the learned judge was, in fact, exercising a discretion and that it is incumbent on him, in order to succeed in this appeal, to show that the learned judge was in terms plainly wrong and that he ought to have granted the order.

     For the Registrar General it is submitted that in his particular position as the recorder and recipient of information about an adopted child, he has only limited knowledge of the child's circumstances. He has to retain the records in safety and in a confidential setting. He is under a mandatory duty by section 50 not to allow the documents, or any index thereof, to be open to public inspection or search and he may only furnish a person with any information contained in or with any copy or extract from any such record or books pursuant to an order of the court.

     Lord Meston, on behalf of the Registrar General, has submitted that his client, the Registrar, is in no position to make a value judgment upon any particular case. He is under a mandatory duty not to make available to public inspection or to any person such information unless it is by order of the court. The learned judge in this case considered the whole of the circumstances very carefully and, as I have indicated, in a comprehensive reserved judgment came to the conclusion that this case did not merit a departure from the strict maintenance of confidentiality which is enjoined by sub-section (5) of section 50.

     Mr McFarlane, in an attractively made submission to this court, suggested that the court ought to have regard to possible benefits to an adopted person. He listed four such suggested benefits:

(a) to know that the natural mother is alive and well;

(b) to know, in this case, that she has a full sister;

(c) if the adopters are still alive she may feel inhibited in taking steps to find out about her birth position; and

(d) P may have it in the back of her mind to find out her origins and, by the time she does firmly come to that view, the mother may not be available. In other words she may have passed on.

Mr McFarlane says that such possible benefits, together with the fact that in 1977 an inquiry was made with appropriate discretion by the National Children's Adoption Agency, should have led the judge to grant this application.

     In my judgment, the judge exercised his discretion in a wholly appropriate manner. It cannot be said that he failed to take into account any relevant matter in this case, or that he took into account matters which were irrelevant. In my judgment it cannot be said that he was 'plainly wrong' in this particular case.

     I believe that when he stated in his judgment, at the bottom of page 18 just above letter G:

"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 adult ... it involves something more than the strongly held wish to know or the strong underlying curiosity to find out;"

he was there setting out very clearly the appropriate approach to a such an application.

     I believe that he was right in his assessment of the facts and circumstances of this case, and that he was correct in dismissing the application.

     There is however, in this case, a further matter to which it is necessary to refer because there is a respondent's notice. The respondent in this case submits that the learned judge was in error, in adopting, or apparently adopting, a passage in the judgment of Thorpe J as he then was in the case of Re H (Adoption: Disclosure of Information) [1995] 1 FLR, 236, as a test. It concerns the burden placed upon the court in approaching such an application. The case of Re H is to be found at divider 7 of the red bundle. This was a case with extremely unusual circumstances, where the information about an adoptee was being sought by a sister, as I understand it, because there was unfortunately the possibility that the by now adult adoptee might be affected by a genetically transmitted disease which the half-brother had suffered; the half brother being apparently in Australia. It was a most unusual application and the circumstances prompted an application under section 50(5), in order to seek to safeguard the adoptee. In the course of that application, which was granted and which was not I believe seriously opposed, a submission was made on behalf of the Registrar General that as a matter of public policy it should be made clear that the discretion of the court in considering whether to make an order under section 50(5) "should be exercised very sparingly and only in exceptional circumstances."

     The only other case which was reported at that time, was that decided 40 years ago in the County Court by His Honour Judge Blagden. That case had concerned the possibility of a bequest to the adoptee. The learned judge, His Honour Judge Blagden indicated in the course of his judgment how very important it was to maintain confidentiality in adopted children's cases, but in fact it was an unopposed application and he made the order.

     It was submitted by the Registrar General that it should be made clear as a matter of public policy that the discretion to make such an order as asked for should be exercised very sparingly and only in exceptional circumstances. In the course of his judgment in Re H, Thorpe J said at page 239 at letter C:

"Mr Blake, for the Registrar General, contends that as a matter of public policy the discretion should be exercised very sparingly and only in exceptional circumstances. He prays in aid of his submission the decision of His Honour Judge Blagden almost 40 years ago and the cautious language with which Judge Blagden acceded to the application in circumstances which were clearly exceptional.

Mr McFarlane, for NORCAP [the agency seeking the order], submits that had Parliament intended that the discretion should only be exercised very sparingly, and in exceptional circumstances, it would surely have so stated. In the absence of any statutory words Mr McFarlane submits 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.

Of the rival submissions I prefer that of Mr McFarlane. Since Judge Blagden considered the parallel section in an earlier statute, attitudes to adoption, its consequences, and the importance of the biological origin and the psychological attachments have changed profoundly."

He went on to refer to section 51 the machinery for an adopted person after attaining majority to seek information about the birth family, and the introduction of the Adoption Contact Register in 1991.

     In the instant case Cazalet J said in terms that he proceeded upon the basis of the formulation adopted by Thorpe J in Re H. On behalf of the Registrar General Lord Meston, in the interests of consistency, asks that the high degree of confidentiality which is required by the Act should be emphasised. He further submits that only in rare exceptional circumstances should a court make such an order and that this should be made clear.

     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 a such an order. In my judgment, it is necessary to have regard to the mandatory language of subsection (5) of section 50 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.

     This is not, as Cazalet J made clear at page 18 and the top of page 19, a situation where a court could not deal with the matter simply upon the basis of the:

"... 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 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. 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 opened to anybody in the case of an adopted child. 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.

     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.

     To that extent I have to differ from the formulation approved by Thorpe J which was accepted apparently by Cazalet J. However, when reading the passage of the judgment of Cazalet J, at the bottom of page 18 the top of page 19, it would appear that he was in effect endorsing an approach which required something of an exceptional nature in order to justify the making of such an order.

     For the reasons which I have given, and with a full understanding of the emotional issues involved, I would dismiss this appeal.

LORD JUSTICE PILL: I agree.

SIR PATRICK RUSSELL: I also agree.

ORDER: No order for costs. Leave to appeal refused. ---------oOo---------