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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gunn-Russo v Nugent Care Society & Anor [2001] EWHC Admin 566 (20th July, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/566.html
Cite as: [2001] NLJR 1250, [2001] UKHRR 1320, [2002] Fam Law 92, [2002] 1 FLR 1, [2001] EWHC Admin 566
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GUNN-RUSSO v. NUGENT CARE SOCIETY v. SECRETARY OF STATE FOR HEALTH [2001] EWHC Admin 566 (20th July, 2001)
Case No: CO/4370/2000
Neutral Citation Number: [2001] EWHC Admin 566
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 20th July 2001
THE HONOURABLE MR JUSTICE SCOTT BAKER
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LINDA GUNN - RUSSO |
Claimant | |
- and - |
||
NUGENT
CARE SOCIETY |
First
Defendant |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Thomas de la Mare (instructed by Liberty for the Claimant)
Mr David Vavrecka (instructed by White and Sherwin for the 1st Defendant) and
Mr Rabinder Singh (instructed by Solicitor to the Department of Health for the 2nd Defendant)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE SCOTT BAKER:
1. This case raises issues about the disclosure of adoption records by a voluntary adoption agency. The Claimant, now in her fifties, was adopted as a child at the age of two. The First Defendant, Nugent Care Society (NCS), were formerly known as the Liverpool Catholic Children's Protection Society and are the voluntary adoption agency that handled her adoption. The Second Defendant is the Secretary of State for Health and is responsible for the regulation of voluntary adoption agencies and the formation of adoption policy.
The Facts
2. For a number of years the Claimant has been trying to obtain information about her adoption and related matters. Through her persistence she has been able to ascertain a lot of information about her past, but there remains some material that the NCS will not let her have. She seeks judicial review (i) of the NCS's decision of 3 December 1999, notified on 8 December 1999, refusing access to her adoption records, (ii) of the Secretary of State's decision of 30 August 2000 refusing to compel the NCS to disclose the records and (iii) of the continuing refusal or failure of both in the light of the Human Rights Act 1998.
3. The Claimant was adopted in 1948. She discovered the identity of her birth parents in the 1970s, met her birth mother in 1976 and was in regular contact with her until her death in 1989. She was her birth mother's only child. Her genetic father, who was in the United Kingdom as an American serviceman but had returned to the United States of America, died in 1987, before she located him. However she had made contact with two half sisters on her father's side. One is older than the Claimant, the other younger. The older one supports the Claimant's efforts to obtain full information about her birth. The younger one was born long after the period covered by the relevant records. Both live in the United States of America.
4. The Claimant's adoptive father died in 1970 and her adoptive mother in 1989. It is difficult to see how any third party could now be adversely affected by disclosure of any of the information sought. That information amounts to the complete records held by the NCS relating (i) to her adoption and (ii) to their dealings with her birth and adoptive parents in so far as such records relate specifically to her. She feels, and I accept that this is a view shared by many other people who have been adopted, that these records form an important component in her quest to understand her childhood and thereby complete her personal identity and self perception.
5. The Claimant has approached the NCS on various occasions for the provision of information. Most recently she started correspondence in 1997 with a view to obtaining the outstanding records, and I should emphasise that she has obtained a good deal of material over the years but not everything. It is the outstanding remainder that gives rise to this litigation. There is no doubt that the Claimant has had a long struggle to obtain all the information that she has now pieced together. Initially she did not even know about the NCS's role in her adoption. She found out about them because she went to the Liverpool city library in 1970 to ask about catholic adoption societies in the area. In the early 1970s there was no right to trace birth parents or, if traced, identify information about them. That has of course changed following Section 25 of the Children Act 1975. The Claimant obtained a copy of her birth certificate from the Registrar of Births, Marriages and Deaths in October 1998 having a year earlier obtained from the Bootle County Court copies of the court records relating to her adoption. However, she remained very keen to reconstruct the history of the first two years of her life. She said that it struck her the only way she could do this was from the records kept by the NCS which she believes contain, amongst other things, contemporaneous notes of interviews and meetings with her birth and adoptive parents, letters between the NCS and her adoptive parents and photographs. Obtaining all these would help her to understand more precisely what happened.
6. The Claimant telephoned the NCS in 1997 to try and find out about the missing two years. By this time both her natural parents and her adoptive parents were dead, as was her father's wife. The nearest surviving relatives were, and still are, two younger sisters of her birth mother and two half sisters of her genetic father, who live in the United States. The NCS's response was in their letter of 1 April 1997 enclosing a couple of documents they felt she might not have and adding:
"As this is an adoption file, open access is not possible, but you have copies of all the relevant documents that would be possible to pass to you. "
The writer concluded by suggesting an interview or group sessions with trained counsellors.
7. The Claimant did not give up. In August 1997 she met Mrs Hennessy at the NCS. Mrs Hennessy showed her a few documents but said she couldn't show her anything else. The Claimant asked to take copies but the request was refused. There followed a letter from NCS which said:
"The current legislation enables an adoption agency to give adoptees information directly related to themselves. On your last visit Mrs Hennessy showed you the file with information relating to your origins. Other parts of the file relate to your adopters and these we cannot disclose to you, although I am aware in the past this has happened.
The procedure we follow at present is covered by legislation and we are regularly inspected by the Department of Health. We are not able to give out the original file, as we need to keep it for 75 years."
8. The Claimant's efforts continued and in July 1999 the NCS's Acting Assistant Director (Operations) offered her a meeting to "help towards resolving any issues which you would wish to raise with us." The Claimant made it clear she wanted to view her file. She was told this could not include her adopters' or birth parents' files. On 19 August 1999 she wrote to the NCS enclosing a letter to be presented to the Board of Governors at its next meeting. At that time she was asking for "the ownership of her complete and original file, including all third party information." She has, however, not pursued the claim to ownership, which could not possibly succeed. The letter in response on 26 August 1999 said:
"I do understand your wish to have in your possession your file and the file of your adopters and birth parents. Our policy is based on the premise that there are a number of parties to an adoption including an adoptee, the natural mother, the adopters. We have a responsibility to consider the rights of all of these and achieve a balance.
Your request that the Governing Body of the Society reconsider its position is noted and your letter will be presented. The Governing Body will wish to have the advice of its Operational Services Committee, which is responsible for adoption policy. I have asked Miss Murdoch for a report to be presented to the next Operational Services Committee on 14 November and to the Governing Body on 3 December."
9. Not surprisingly, in view of the contents of that letter, the Claimant wrote to its author, Mr Kennedy, pointing out that he did not appear to have understood her case. She reiterated that her birth parents and adoptive parents were dead and that there were no surviving close relatives to be considered. She said:
"It is this specific point on which I am basing my request for a change in policy re access to files, or if not a change in policy then an amendment to the guidelines, which will allow the Society to exercise its discretionary powers in cases, of which mine is a prime example, where certain criteria are no longer pertinent, and where fixed guidelines therefore become redundant."
10. The written submission to the Governors is to be found at p.253 of the bundle of documents and it is unnecessary to repeat it here. It succinctly sets out her case and refers to the NCS's discretionary power in Regulation 15(2)(a) of the Adoption Agencies Regulations 1983 (as amended). It also refers, with some feeling, to the obstacles she has encountered with the NCS.
11. The position of the NCS is made abundantly clear in a press statement of 8 July 1999 and a letter from Mr Kennedy to Mr David Sumberg M.E.P. dated 16 November 1999. Whilst assisting an adoptee as far as they are able, they recognise the needs of all parties who have shared information with them on the understanding that it would not be disclosed. Confidential information remains confidential regardless of the passage of time or the death of the person concerned.
12. The Board of Governors met on 3 December 1999 and the decision letter was written on 8 December 1999. Before the Board met the Operational Services Committee had met on 4 October 1999 and considered a report on access to birth records by adopted people written by Miss Murdoch, a principal officer. It was of course the Claimant's request for information that precipitated this action. The report is short and is notable for its failure (i) to examine in any depth whether the current policy of the NCS continues to be appropriate and if so why and (ii) to look at all the particular circumstances of the Claimant's application. The report notes:
"Some adoption agencies give full access to the adoptee and birth parent file. As far as Miss Murdoch can ascertain no agencies give access to the adopters file: this file contains confidential information supplied by the adoptive parents and other third parties (i.e. referees and local authorities.) B.A.A.F's legal section and the Department of Health have confirmed this to be confidential information."
There was no analysis whatever of what was in the file. The report then went on to conclude:
"With regards to the adopters file I would therefore recommend the continuation of current policy of not disclosing information."
13. The report then went on to consider the position with regard to adoptee and birth parent files pointing out that the Children Act 1975 gives adoptees access only to their original birth certificate and not to the contents of the file or their birth parents' file and that birth parents who placed their children for adoption prior to the implementation of Section 26 of the Children Act 1975 were not aware that the information they provided might in the future help their birth child to trace them. The report then went on to outline what information was not given and to record that the most recent inspector from the Department of Health had said that their policies were "a little tighter then most." It was the opinion of the team that confidential information given by the birth parents should not be disclosed to adoptees. The recommendation was that the current policy should stand.
14. The final recommendation was:
"In view of the reviewed policy I would not recommend it as appropriate for this request to be granted. Ms Gunn-Russo has already had access to her own file and has been supplied with information from her birth parents' file."
There was no analysis whatsoever of the facts of the Claimant's situation and how any policy might be applied to her.
15. There is a brief minute of the meeting of the Operational Services Committee on 14 October 1999 recording that the committee endorsed the current policy on access to birth records. It is interesting that the minute records that Mr Kennedy had asked Miss Murdoch to prepare the report seeking affirmation of the stance that had been taken. The reader is not left with the impression that there was any serious fresh look at the policy still less were minds applied to the particular circumstances of the Claimant's case.
16. Catherine Shelton's evidence is that the report was before the Board of Governors on 8 December together with the Claimant's letter. Presumably the Board also had the minute of the Operational Services Committee meeting of 14 October 1999. The decision letter of 8 December begins by saying that the governing body had had an opportunity of considering the policy of the society in the light of the Claimant's comments and application. The second paragraph goes on to make a point about the confidential nature of the information and the practice of other adoption agencies. The governing body therefore saw no reason to change the society's policy which it saw as essential to protect the rights of adopters and third parties. It went on to say that its policy was totally consistent with the law and essential to protect the rights and interests of birth parents. The penultimate paragraph reads:
"The Governing Body was made aware that you had traced your birth parents and that you had been provided with all of the information from your file consistent with the society's policy. The request that you be allowed access outside of that policy and be allowed to remove from the society the adoption file and all information about yourself, birth parents and adopters cannot therefore be granted. The society will retain and maintain the adoption records for a period of 75 years in accordance with legal requirements and continue to offer you any help and support consistent with its policy."
The Law
17. At the heart of this case lies the NCS's discretion as an adoption agency under Regulation 15 of the Adoption Agencies Regulations 1983. Regulation 15(2) provides:
"Subject to paragraph (3), an adoption agency may provide such access to its case records and the indexes to them and disclose such information in its possession as it thinks fit -
(a) for the purposes of carrying out its functions as an adoption agency, and
(b) to a person who is authorised in writing by the Secretary of State to obtain information for the purposes of research."
Regulation 15(3) requires a written record to be kept by the adoption agency of any access provided or disclosure made by virtue of this regulation.
18. There are also other legislative provisions and circulars that are of some importance in the context of this case and I shall refer to them briefly.
19. Section 1 of the Adoption Act 1976 requires local authorities to establish and maintain adoption services in their area. This can be done in one of two ways, either by the local authority itself or by an approved voluntary adoption agency such as the NCS.
20. Section 50 provides for the maintenance of an adopted children register and Section 51 provides for the disclosure by the Registrar General of the information necessary to obtain a birth certificate of an adopted person and any prohibited degree of relationship of an intended spouse. Section 51A provides for the maintenance of an adoption contact register, the purpose of which is to facilitate contact between an adopted person and his natural family.
21. Section 58A(1) requires every local authority and voluntary adoption agency to transmit to the Secretary of State particulars as to their performance of their functions under the Adoption Acts and as to the children and others in relation to whom they have exercised those functions. Subsection (4) requires the Secretary of State to publish abstracts of the particulars submitted.
22. The Adoption Agencies Regulations 1983 (the 1983 Regulations) are made under Section 9(2) of 1976 Act. Regulations 7 and 8 spell out an adoption agency's duties in respect of a child, his parents or guardian and prospective adopter.
23. By Regulation 13A, the adoption agency has to provide the adopters with such information about the child as they consider appropriate and advise the adopters that this information should be made available to the child when they consider it appropriate but no later than the child's 18th birthday. This provision was introduced in 1987.
24. By Regulation 14, any information obtained or recommendations or decisions made are to be treated by the adoption agency as confidential. This is subject to regulation 15 to which I shall refer in more detail in a moment. Regulation 14(2) requires the case records to be kept for at least 75 years.
25. My attention was also drawn to the Adoption Rules 1984 which regulate proceedings in the High Court and county court. The present case was not, of course, concerned with court proceedings and therefore these rules have no direct application. However Rules 5(8) and (6)(ll) expressly provide for the confidentiality of reports to the court and Rule 53(4) requires the leave of the court before any document or order may be copied or inspected.
26. The Local Authorities Social Services Act 1970 provides the Secretary of State with wide powers of control and review over local social services authorities. This affects all of the adoption services provided by local authorities directly but not through voluntary adoption agencies. See in particular Sections 7A to 7D.
27. Circular LAC (84)3 provides some comment in paragraphs 118 to 121 on disclosure under Regulation 15(2). Paragraph 120 refers to the sort of external circumstances which agencies may wish to provide for in their policy and which procedural instructions might include. Among these are "giving an adopted person background information about himself or the circumstances of his adoption."
28. Local Authority Circular LAC(97)13, in particular paragraph 28, provides guidance on the proper application of Regulation 13(A) of the 1983 Regulations. Section 7 of the additional guidance refers to the contents of the case records. Paragraph 58 is of particular significance. It says:
"The intention is to provide the adopted person with as much information as possible about his social and personal history and the reason for the adoption. Painful or unpleasant information should not necessarily be "glossed over." The identification of such material may, indeed, prove to be the basis for future post adoption support and service contingencies. Care must nevertheless be taken to anonymise the material and exceptionally exclude confidential information about third parties or information provided "in confidence and not for wider dissemination." There follows a check list of most of the documents which should be included in the case records. Among these are:
* record of social work with child about his adoption.
* adoption panel minutes and recommendations.
* summary of steps taken to find suitable adopters for the child and a copy of the child's profile records used for this purpose.
* adoption panel minutes and recommendation in respect of matching the child with prospective adopters.
* placement agreement with adopters.
* open letter from social worker describing how and why adoption plans became the plan for the child.
Of course many of these and the other specified information may not have been placed on file at the time of the Claimant's adoption. However the significance is that such information is now placed on file routinely with a view to disclosure to the child.
The outstanding information
29. The present position is that the following information remains outstanding (i) a document from the birth parent file from Croydon Council relating to the birth mother and (ii) documents from the adopter file relating to the Rogan family. The Claimant has had complete access to the adoptee file and the NCS have confirmed they have no photographs or further information relating to Mid Russo. It appears that the Claimant may already have been shown everything (see in particular the NCS's acknowledgment of service) and that what is being refused is copies of the documents. If so the NCS are in breach of Regulation 15(3) in having kept no record of what they have shown the Claimant. Furthermore, any confidentiality will have gone and it is difficult to see what logical objection there can be to the Claimant now being provided with copies. I think part of the difficulty is the NCS are not sure what the Claimant has seen and she is not sure what there is to see.
The Practice of the NCS
30. In her evidence Catherine Shelton describes the policy and practice of the NCS towards adoptees generally. She says that once the adoptee has obtained a copy of his/her original birth certificate a further interview is arranged when information may be shared from the adoption records. At this stage, every case is considered individually and the information provided will take into account the information the adopted person has or wishes to have and their reasons for requesting the information. Any information would be in the form that it was given to the Claimant (pages 201-203 in the bundle.) Unless there are exceptional circumstances it is the information in the adoptee file that is most routinely likely to be disclosed as this information relates specifically to the adopted person herself and her early years. Limited information with regard to the birth parents maybe disclosed if this will assist the adopted person in tracing the birth parent or if the information has a direct bearing on the adopted person, for example medical information. Any further information from the birth parents' file is usually only disclosed if the agreement of the birth parent is obtained.
31. Ms Shelton goes on to point out that no information is disclosed regarding the adoptive parents and the adopted person is not given direct access to any part of the adoption file. This file may contain information which has been supplied by third parties. It will also have the records relating to the evidence obtained during the assessment of the adoptive parents. Information, she says, that is not relevant to the adopted person in terms of their identity, especially as the adoptee will have been raised with his/her adopted family.
32. She summarises the NCS's position as follows. It has always operated within the best practice guidelines that exist and within the constraints of the legislation. Procedure and attitudes have changed considerably in recent years but, despite the changes, the rules and procedures in relation to adoption retain the policy of confidentially regarding adoption agency records. This is reflected in the Adoption Act 1976 and the Adoption Rules 1984 as well as in the Adoption Agencies Regulations 1983 and the Government Guidance in Circular LAC (84) 3. The NCS wishes to assist the adoptee as far as possible, but there are other parties to the adoption process whose interests have to be considered and many of these parties share information with the society on the understanding it will not be disclosed. The nature of that information is intensely personal and the NCS regard it as received in confidence. The information remains confidential regardless of the passage of time or the death of the person concerned. Children remaining in the care of their birth parents would not be entitled to receive or have a right of access to similar information about their own parents and similarly adoptees have no greater right of access to such information about their birth parents or adopters.
33. The sort of information given by birth parents or adopters, she says, is not considered to be information that a child would normally expect to inherit from a parent. In the experience of the NCS an adopted person has not before been given complete access to the adoption file, and in particular to the adopters' and birth parents' file. There are others, including the Claimant, who plainly takes a different view about the relevance of such information. I do not think there is a precise comparison to be made with people brought up in their birth family. An adopted person may well wish to know why he or she was placed with a particular family and why that family was felt to be suitable. However, Ms Shelton says, the Claimant has had more extensive disclosure than other adoptees and this has in part reflected her particular circumstances and the understanding she was shown in being given copies of documents relating to her adoptive parents in the past. This disclosure was contrary to the NCS's practice.
34. It is said that the NCS's policy is consistent with that of other agencies who have similar policies in relation to the adopters' part of the file and do not allow an adopted person direct access to it.
35. There is no question of the NCS providing the Claimant with original documents for they have an obligation under Regulation 14(3) of the Adoption Agencies Regulations 1983 to keep the case records in cases where an adoption order is made, for at least 75 years.
36. Although the NCS's decision of which complaint is made was on 3 December 1999 they have provided some further information. An exchange of correspondence between solicitors in early 2001 reveals that there has been significant further disclosure since that decision. However, no explanation has been given for the apparent departure from the December 1999 position. There remains outstanding the information I have referred to above. It appears the information on the adopter file i.e. relating to the Rogan family is being refused on a global, as opposed to document by document, basis.
The Complaint
37. The fundamental point taken by the Claimant is that the NCS has adopted an inflexible policy of refusing adoptees, such as the Claimant, access to the adopter file irrespective of the circumstances of the case. Put shortly, it has fettered its discretion. It is well settled that whilst a public body may develop policies to assist in the making of consistent and principled decisions under a general statutory discretion, it cannot turn those policies into inflexible rules that would negate the discretion. Each case, therefore, must be considered on its own facts and a departure from the general policy considered. The relevant material requires to be considered and findings of fact made upon it to justify upholding or not upholding the general policy on the facts of the case. Lord Reid said in British Oxygen Co. Limited v Board of Trade [1971] AC 610, 625D:
"The general rule is that anyone who has to exercise a statutory discretion must not "shut his ears to an application"....... I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing."
38. The NCS's submission in the present case is that it acted lawfully in having a policy and that the adoption of this policy did not disable it from exercising its discretion in the Claimant's case. Certainly, it was entitled to have a policy, although I am bound to say I have some doubts whether in the light of modern circumstances the policy leans too heavily against disclosure. I shall return to this in due course. Of more immediate concern is the fact that the policy was being rigidly applied without true consideration of the facts of the Claimant's case. Mr De La Mare, for the Claimant, has outlined what he calls the key features of her case. These are in summary:
i) She was adopted over half a century ago and the overwhelming likelihood is that all those professionally involved are long since dead or retired. She herself is now in her mid fifties.
ii) Both her parents and her adoptive parents are dead. There are no surviving close family. Her natural father was an American Serviceman and returned to the United States many years ago.
iii) There is no suggestion that any disclosure might be harmful to the Claimant.
iv) The Claimant had a close relationship with her natural mother for about 11 years until she died and since her natural father's death she has made a friendship with her half sister Joyce Russo. Her only surviving family are through her natural father Mid Russo and it is clear from the NCS's evidence that nothing in the undisclosed material relates to him.
v) The Claimant has never had the opportunity, now afforded to adopted children, of a systematic life story book or the kind of structured carefully considered information now provided to adopted children. Nor has she had the carefully compiled adoptive file that one might currently expect. The evidence of Catherine Shelton shows that the NCS's files are currently constructed in accordance with Regulations 7 and 8 of the Adoption Agencies Regulations 1983 and circular LAC (97)13. They are divided into three parts, birth parents, adopters, and adoptee. Back in the 1940's the files were not constituted in this way but the material within the old files is still regarded as falling into these three distinct parts.
vi) The Claimant recalls having been shown what she believes to be letters that are now being withheld as part of the adopter file. To the best of her recollection they do not contain any high confidences.
The Claimant's argument is that when these points are all taken into consideration her case is demonstrably different from the ordinary run.
The NCS's Decision
39. I am satisfied, having read carefully the whole of the evidence, that the NCS has not considered the particular circumstances of the Claimant's case against its general policy. This was an unusual case largely because of the long passage of time since the Claimant was adopted. None of the key players except the Claimant is still alive. Furthermore, it must have been obvious to the NCS that she was and is desperate to extract every morsel of information about her past from their files. Disclosure means a very great deal to her. In these circumstances the balancing exercise they had to conduct involved weighing up these factors against the benefit of maintaining confidentiality.
40. It is clear from Ms Shelton's evidence that the NCS regard the confidence with which information has been supplied to it as something that survives both the death of the giver of the information and the passage of time. The tenor of what she says is that the adopters' section of the file is withheld as a matter of course as is other information from third parties. This, she says, is the practice not only of the NCS but also of other agencies.
41. Confidentiality, it seems to me, is potentially relevant in two respects (i) generally and (ii) in relation to the individuals in the instant case. The NCS seem to have failed to appreciate this. What they should have done was to go through the remaining documents on a document by document basis to see if there was in each instance a compelling reason for the non disclosure of any particular document. Then they should have looked at the position generally. As to the general position, the NCS's argument appears to be that permitting disclosure even where there is no risk of breaking an individual confidence is impermissible because of the damage it would do to the adoption process generally. Those who supply information in confidence would no longer be prepared to do so if they felt that confidence might not be maintained. I am unpersuaded about the force of this argument, particularly if it is made clear when giving disclosure that none of those involved is either alive or has any interest in maintaining non disclosure.
42. Nowhere is there any explanation of what weight if any was given to the particular circumstance of the Claimant's case, especially the passage of time since her adoption and the fact that all close members of her birth and adoptive family were no longer alive. Nor is there any suggestion that the documents remaining undisclosed, with the possible exception of the one outstanding document from the birth mother's file, were considered other than on a global basis.
43. When therefore one turns to the decision letter and finds no reference to the critical findings in her application, namely death and the passage of time, not only is the picture clear but the agency's attitude is consistent. They have a policy they are convinced is right and they are not going to change it. The maintenance of confidentiality trumps everything, regardless of the circumstances. Only information accessed under its general policy is to be allowed. I am driven to the conclusion therefore that the NCS's decision falls foul of the principle enunciated by Lord Reid in the "British Oxygen" case. No findings of fact, appear to have been made.
44. Not least of the Claimant's complaints is the absence of reasons for the NCS decision other than that it is not their policy to disclose what is sought. This makes it impossible for her to mount an informed challenge. Had the NCS addressed the particular circumstances of her case she might have been able to respond.
45. It is to be noted that whilst the report to the Operational Service Committee records Regulation 15 as one of several legislative provisions regulating the NCS as an adoption agency, neither that report nor the decision letter adverts to the fact that the NCS was exercising a discretion given under that regulation. There is therefore some doubt in mind whether the governing body truly appreciated the statutory discretion they were required to exercise.
Confidentiality
46. The Adoption Act 1976, together with the related regulations and guidance, emphasises the confidential nature of case records prepared in the course of an adoption and of the adoption proceedings. The nature of the information imparted by a birth parent and prospective adopter to an adoption agency is by its nature confidential, having been imparted in circumstances importing an obligation of confidence. It is the NCS's case that this confidentiality continues forever notwithstanding the age of the adopted person, the passage of time and whether or not the person giving the confidential information and those affected by it are still alive. The Claimant submits that the death of the party confiding the information neither necessarily leaves the confidence unaltered nor automatically terminates it. The effect of death of the confider depends on the circumstances.
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. This led to Section 26 of the Children Act 1975 and the right of adopted people over the age of eighteen to a copy of their original birth certificate. 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.
49. Regulation 15(2) is phrased in wide terms. It refers to access to the agency's case records. Mr De La Mare points out that this expression is wider than "birth records," the expression used in Section 51 of the Act. Furthermore, nothing in the Act or Regulations limits the case records which may be disclosed. All the records are, submits Mr De La Mare, held prima facie subject to the obligation of confidence in Regulation 14, which of course is subject to discretion to disclose in Regulation 15.
50. What is the strength or effect of the confidential obligation? Lord Widgery C. J. said in Attorney General v Jonathan Cape Ltd [1976] 1QB752, 771 in respect of public confidences that:
"There must, however, be a limit in time after which the confidential character of the information, and the duty of the court to restrain publication will lapse"
He added that:
"It may, of course, be intensely difficult in a particular case, to say at what point the material loses its confidential character, on the ground that publication will no longer undermine the doctrine of cabinet responsibility."
51. As the authors Toulson and Phipps on Confidentiality (1996 edition) at p.63 point out, the principle that on information losing its confidential character the duty of confidence ceases must apply equally in the case of private confidences. In applying that principle due attention must be paid in each case to the original purpose of the duty of confidence. In the case of a private confidence, the duty exists to protect the personal, private and proprietary interests of the citizen. See Commonwealth of Australia v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 51 per Mason J. The duration of such duty will vary according to the nature of the information and the nature of the relationship. Nor does the death of the confider necessarily bring the confidentiality to an end, for example where a patient has confided confidential information to a doctor and then dies. In the present case, although the confidences are private in the sense that the information was supplied by private individual there is, it seems to me, a public element in that confidentiality is recognised by a number of provisions of the Adoption Act and Regulations. There is a public interest in maintaining confidentiality that goes beyond the interests of the individual supplier of the information. Put shortly, if adoption is to work satisfactorily, confidentiality must be available.
52. In my judgment the correct approach is that taken by Scott J in the Spycatcher Case [1990] 1 AC109 at 147-8. The ambit of the duty of confidence depends on the nature of the obligation and the interest which it is intended to protect. The interests to be protected in the present case are both those of the imparters of the information and the public. I agree with the statement in Toulson and Phipps at p.56 that in principle a duty of confidentiality should cease if the information loses the quality of confidence, whether through the passage of time, loss of secrecy or other change of circumstances.
53. The present case is not, however, 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 the NCS's discretion in Regulation 15(2). There is, I think, no difficulty in concluding that in disclosing the information the NCS would be doing so for the purposes of carrying out its functions as an Adoption Agency. Were that not so it could not have supplied any information to the Claimant. The position reached is therefore that the NCS have a discretion that is unrestricted (other than by Regulation 15(3) which is irrelevant for present purposes) that falls to be exercised against the background of the current adoption legislation and the law on confidentiality. 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. The Court was faced with different, but not entirely dissimilar, circumstances in D v NSPCC [1978] A.C.171. Lord Edmund-Davies said at p.245 that where (i) a confidential relationship exists (other than that of lawyer and client) and (ii) disclosure would be in breach of some ethical or social value involving the public interest, the Court has a discretion to uphold a refusal to disclose relevant evidence provided it considers that, on balance, the public interest would be better served by excluding such evidence.
55. In my judgment the NCS 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 thirty years.
Article 8 of the E.C.H.R
56. Article 8 of the European Convention on Human Rights is relied upon by the Claimant both against the NCS and the Secretary of State. Against the NCS it is said to be an important factor in the exercise of discretion under Regulation 15. I have come to the conclusion, however that in the circumstances it adds nothing to English common law in this regard. Regulation 15 already fully contemplates the interest of the Claimant in knowing and understanding her early life. Put slightly differently, the disputed documents are not ones to which any greater rights of access are conferred by Article 8 than exist in domestic law.
57. The NCS accepts that in exercising its functions under the Adoption Act 1976 and the relevant regulations it is exercising a public law function and that it is a public authority for the purposes of judicial review and Section 6 of the Human Rights Act 1998. Article 8(1) of the Convention provides that:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
58. Mr de la Mare argues that because adoption records play an important role in the development of the adopted person's personal identity, the records necessarily relate to that person's private and family life under Article 8. He relies on Gaskin v United Kindom (1989) 12 EHRR 36 as support for the proposition that the Claimant has a vital interest, protected by the Convention, in receiving information to know and understand her early development. The Court in that case however said at paragraph 49:
"On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8. Taking into account the state's margin of appreciation. The court considers, however, that under such a system the interests of the individual seeking access to records relating this private and family life must be secured when a contributor of the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or witholds consent."
59. This passage provides the cornerstone for Mr De La Mare's argument that Article 8 creates a positive obligation on the State to provide some independent authority or appeal process where a voluntary adoption agency declines to release records. Absent such a right of review he submits there is a breach of Article 8.
60. Article 8 includes adoptive parent/child relationships. See X v Belgium and Netherlands (1975) DR 75. There is no doubt that the relationship that existed between the Claimant and her adoptive parents amounted to family life. However, I find it difficult to see that respect for her private and family life per se entitles the Claimant to access to documents created before and shortly after the time she was adopted, many of which will have emanated from third parties such as the social services. It is not, in my judgment, part of family life for members of the family to be entitled to access to information given by a parent to a third party or vice-versa. The present case is clearly distinguishable from Gaskin where the material sought was about the applicant. Here the information was provided by a third party and is about a third party. In Gaskin the applicant was in the care of Liverpool City Council during his minority, mostly boarded out with various foster parents. He claimed he was ill treated whilst in care. The local authority was under a duty to keep certain confidential records concerning him and his care. Since majority he had tried to obtain details of the information in these records. Eventually the council resolved that the information on his file should be made available to him subject to the consent of the contributors to the file. Some refused consent and he claimed that the refusal of access to all his records was a breach of his right to respect for his private and family life. The ECHR agreed by 11 votes to 6. Since the information compiled and maintained by the local authority related to the applicant's basic identity, and indeed provided the only coherent records of his childhood formative years, the court found the refusal to allow him access to the file to be an interference with his right to respect for his private life falling to be justified under Article 8(2). The file provided a substitute record for the memories and experience of the child who is not in care. The court expressly did not decide (see p.37 of the judgment) whether general rights of access to personal data and information could be derived from Article 8(1). In my judgment the decision in Gaskin was very much dependant upon the facts of that case.
The case against the Secretary of State.
61. The Secretary of State's decision of 30 August 2000, which was maintained after the Human Rights Act 1998 came into force, refusing to compel the NCS to disclose the records was based on the belief that he had no power to do so under domestic legislation. The Claimant challenges this and also the further contention that, absent any right of appeal against the NCS's decision, the Secretary of State is in breach of a positive obligation arising from Article 8 of the European Convention on Human Rights to provide such right of appeal to an "independent authority." The Claimant's contention is that no voluntary adoption agency is capable of being the independent authority referred to in paragraph 49 of Gaskin.
62. The argument is that the NCS lacks such independence because contributors to the adoption records are likely to consist of birth parents, adopters and adoptees, professionals who are likely to be either employees or agents of the agency and third parties such as local authorities, referees etc. Also, voluntary adoption agencies are heavily involved in the adoption process and form close links with both birth parents and adopters as well as, potentially, adoptees. Therefore it follows that the NCS's employees are either the contributors themselves or are so intimately involved with such contributors as to be lacking either actual independence or the appearance of independence. I find this argument, as a matter of generality, difficult to accept. Should there be a particular case in which the discretion under Regulation 15(2) is exercised unlawfully, it seems to me that judicial review provides an adequate remedy.
63. The Claimant's submission's can be summarised thus:
i) The Secretary of State has failed, and continues to fail, to fulfil a positive obligation under Articles 8 and 14 of the Convention to make available an appeal procedure against the decision of bodies such as the NCS.
ii) Section 58A of the Adoption Act 1976 can and must be read in such a way as to cure that apparent incompatibility with the Convention.
64. In the first place there is no express provision in the Convention to make available an appeal process against the decisions of bodies such as the NCS refusing to disclose certain documents to an adopted person. If such a right exists it has to be implied. It is necessary to start by looking at the scope of Article 8 itself. It is not only the Claimant that has the right to respect for her family life; others do too. Of particular relevance here is the adoptive family. Much of the outstanding information appears to relate to the adoptive family and what the Claimant is in effect seeking is information of a private nature that relates in part at least to others. As Mr Rabinder Singh, for the Secretary of State, pointed out the mere fact that a person is a member of your family does not mean you have the right of access to private information about him, for example medical information.
65. Mr de la Mare's case that the NCS cannot in law have the last word and that there must be access to some independent authority is constructed entirely upon what was said in paragraph 49 in Gaskin. But in my judgment the present case is very far from on all fours with Gaskin. In Gaskin the applicant was denied disclosure of certain documents because the contributors of information had, in effect, a right of veto over them. In the present case much information has already been disclosed but what remains undisclosed appears to contain private information relating to others. The positive obligation on the part of the State that was held to exist in Gaskin was the provision of a procedure whereby the refusal or failure of a contributor to consent could be overridden if necessary. No such procedure is necessary in the present case because Parliament has given adoption agencies such as the NCS a discretion under Regulation 15(2) of the 1983 Regulations whereby they hold the ring between the competing interests of the suppliers of confidential information on the one hand and adoptees who are keen to discover the full story of their past on the other. Mr Singh validly makes the point that the reception into English law of convention rights through the Human Rights Act 1998 was not designed to lead to a radical restructuring of our legal or administrative system. After all, this country has been a signatory to the Convention for the best part of 50 years. As Mr Singh aptly put it, the purpose of the Act is to absorb the principles of the Convention into the fabric of our legal system rather than to be an alien adjunct to it. The scheme of the Human Rights Act is whenever possible to give effect to convention rights through our existing law. So it is that Section 3 of the Human Rights Act 1998 provides that so far as possible primary and subordinate legislation must be read and given effect to in a way which is compatible with convention rights. The duty to protect convention rights rests on all public authorities under Section 6, and this of course includes the courts. Insofar as there is any positive obligation on the State to protect Article 8 rights, that duty rests as much on the courts as it does on any other public authority. In my judgment should access to an independent authority be required to discharge a positive obligation under Article 8 then the Administrative Court is well able to discharge it in the exercise of its supervisory role.
66. Mr de la Mare invoked by analogy Article 6 of the Convention in support of his client's alleged right to have the NCS's decision reviewed by an independent authority, arguing that this means a body independent of the parties or, in the context of Gaskin, independent of the contributors. However, Bryan v United Kingdom (1995) 21 EHRR 342 at paragraph 40 at seq makes it clear that even where a decision-maker is not wholly independent, the right of access to the Court by way of judicial review (or similar appeal process) is sufficient to satisfy Article 6. This view was fortified recently by the House of Lords in R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] 2 WLR 1389. No wider principle flows, in my judgment, from Article 8, which gives rise at best to an implied positive obligation and not an express one.
67. Finally, my attention was drawn to the Data Protection Act 1998 which provides for access to the court including appraisal of confidentiality issues. Mr De La Mare submits that but for a recent amendment order this route would have been available to the Claimant. This, he says, emphasises the need to provide some form of independent review. Mr Singh's response is that even before the amendment or order the Claimant had no right under the Data Protection Act to information relating to others.
Section 58A of the Adoption Act 1976
68. Because the Claimant's argument that the Secretary of State is obliged to provide an appeal procedure from bodies such as the NCS fails, there is no need to resort to Section 3(1) of the Human Rights Act 1998 to see if some construction of Section 58A(1) of the Adoption Act 1976 can be found to secure compatibility with the ECHR. Nevertheless, I pause to consider what is the true construction of Section 58A(1).
69. There is abundant evidence to establish that Section 58A(1) has hitherto been regarded as an information gathering tool for statistical purposes and no more. Although it does not appear thus far to have been the subject of judicial interpretation, that in my judgment is its natural and obvious meaning. The Claimant's argument, however, is that a wider meaning is possible without any distortion of its language and that such wider meaning would satisfy Section 3 (1) of the Human Rights Act 1998 and indeed is necessary to do so. The Claimant's argument runs thus. Nothing in the wording of the section expressly or by implication limits its scope to the provision of statistical information. The width of the key expressions "particulars", "in such form as he may direct", "with respect to........performance of all or any of their functions" and "with respect to the children and other persons in relation to whom they have exercised those functions" is self evident. Secondly, there is some linkage between the wording of Section 58A(1) and that of Regulation 15(2). The general references to functions in Section 58A(1) echo the words Regulation 15(2) which permits disclosure by a voluntary adoption agency "for the purposes of carrying out its functions". Thirdly, the linkage is further confirmed by Regulation 15(1)(b) which confirms that information falling within the adoption records can be disclosed to the Secretary of State by the voluntary adoption agency in question. This is not simple access for statistical purposes but access to its case records and the indexes to them as well as "such information in its possession."
70. This, submits Mr De La Mare, leads to the conclusion that Section 58A(1) gives the Secretary of State a power to compel the provision of records (and not just statistics with a view to reviewing a voluntary adoption agency's refusal to disclose). He submits that this is a possible interpretation in order to comply with the Convention rather than a reasonable interpretation. It is, he submits, a purposive interpretation that is sometimes necessary in order to discharge the duty imposed by Section 3 of the Human Rights Act. Such an interpretation would, he points out, put the adoptee in a comparable position to one whose records are held by a local authority rather than a voluntary adoption agency (see Sections 7 to 7D of the Local Authorities Social Services Act 1970). Absent such a construction, he submits, voluntary adoption agency adoptees are at a disadvantage as against local authority adoptees and there is therefore a breach of Article 14.
71. I have reached a clear conclusion that the meaning of Section 58A(1) is no wider than it has always been understood to be. The section is there for statistical purposes and no more. Even were I constrained to do my best to construe it so as to enable the Secretary of State to review the agency's decision I could not reach the conclusion advocated by Mr De La Mare. A purposive approach is one thing but it cannot be stretched so far as to give the words a meaning that they were plainly not intended by Parliament to have.
72. What in my judgment the Claimant is in reality complaining about is not so much a failure to act by the Secretary of State as a failure by Parliament to enact primary legislation or a failure by the Secretary of State to propose legislation to Parliament. This is expressly excluded from acts and omissions that are made unlawful by the Human Rights Act 1998 (see Section 6(6)).
73. In the course of his submissions Mr De La Mare argued that the Secretary of State had power to make relevant regulations under Section 9(2) of the Adoption Act 1976. But that only relates to the exercise of "its" functions by an approved adoption society. It provides no basis for giving the Secretary of State power to act as an appellate authority.
Conclusion
74. My conclusion therefore with regard to the NCS is as follows:
i) The NCS have a wide discretion under Regulation 15(2) of the 1983 Regulations to disclose material on the adoption file.
ii) This discretion must be exercised against the background of the adoption legislation and in the context of the particular circumstances of the case.
iii) The NCS should look again at their general policy and consider whether it operates too rigidly against disclosure in the light of present day circumstances.
iv) Whatever the appropriateness of their policy the NCS applied it too rigidly to the Claimant's application and without giving proper consideration to the specific circumstances of her case in particular the passage of time since her adoption and the death of those individuals who might have wished to maintain confidentiality. Had they considered her request properly they would have gone through the file on a document by a document basis and asked themselves whether there was any longer any compelling reason for maintaining the confidentiality of each document. They should have conducted the balancing exercise between the arguments in favour of disclosure on the one hand and the arguments in favour of maintaining confidentiality on the other.
v) The Human Rights Act 1998 incorporating into English law the European Convention on Human Rights adds nothing to the English common law in the circumstances of this case.
vi) The NCS have not lawfully exercised the discretion given to them under Regulation 15(2) of the 1983 Regulations. They should reconsider the Claimant's application for those records that remain undisclosed and they should do so in the light of the contents of this judgment.
The Case against the Secretary of State
75. My conclusion with regard to the case against the Secretary of State is as follows.
i) There is no right of appeal against a voluntary adoption agency's decision under Regulation 15(2) of the Adoption Agency's 1983. The only remedy is judicial review.
ii) The Secretary of state has no duty to make available an appeal procedure against such decisions. Nor has he any power to compel such an agency to disclose adoption records to an adopted person.
iii) Section 58A(1) of the Adoption Act 1976 cannot be read so as to give power to the Secretary of State or any one else to substitute his decision whether a document should be disclosed to an adopted person for that of the voluntary adoption agency.
iv) So far as a disclosure of adoption records by a voluntary adoption agency is concerned there is no incompatibility between domestic legislation and the European Convention on Human Rights.
76. In these circumstance the claim for judicial review against the decision of the Nugent Care Society succeeds. They should reconsider both their policy with regard to the disclosure of records to adopted persons generally and its application to the Claimant. The claim for judicial review against the Secretary of State fails.
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