The administrative court has ruled that an adopted person could, at the discretion of the adoption agency, have access to records about her adopters and birth parents.
The claimant had been refused access to her adoption records with regard to her adopters' and part of her birth mother's files. The agency wrote informing the claimant that adoption legislation enabled an adoption agency to give adoptees information directly related to themselves, but that they saw no reason to vary their normal policy of not disclosing information about adopters.
The claimant applied for judicial review of the refusal to disclose. The claimant submitted that the agency, by adopting an inflexible policy of refusing adoptees access to the adopters' file irrespective of the circumstances of the case, had fettered its discretion under regulation 15(2)(a) of the adoption agencies regulations 1983. That regulation provided that: '… 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 …'.
The claimant also argued that the secretary of state had failed to fulfil an obligation under parts 8 and 14 of the convention to make available an appeal procedure against the decisions of adoption agencies and that section 58A of the Adoption Act 1976, which required every agency to transmit to the secretary of state particulars as to the performance of their functions under the adoption acts, should be read in such a way as to cure the apparent incompatibility with the convention.
The court held that adoption agencies had a wide discretion under the regulations to disclose material on the adoption records. Although case records were confidential, the duty of confidentiality ceased if the information lost the quality of confidence, whether through the passage of time, loss of secrecy or other change of circumstances.
The ambit of the duty of confidence depended on the nature of the obligation and the interest it was intended to protect. The interests to be protected in adoption cases were both those of the imparters of the information and the public. It was incumbent on an adoption agency exercising such a discretion to have in mind all the circumstances of the case.
It was not only the claimant who had a right to respect for her family life. The adoptive family had such rights, but in this case none of the relevant people other than the claimant was still alive, which suggested that there was little if any purpose in maintaining confidentiality from the viewpoint of those who imparted the information. Balanced with these considerations was the genuine interest of the claimant in receiving the information.
The policy had been applied too rigidly in this case. Each document had to be considered individually in the light of whether there was any longer any compelling reason for maintaining the confidentiality of each document. It followed that they had not lawfully exercised the discretion given them under regulation 15(2), and they should reconsider the claimant's application for those records that remained undisclosed.
There was no express provision in the convention to make available an appeal process against the decisions of adoption agencies, refusing to disclose certain documents to an adopted person, nor could one be implied. The position was not the same as set out in Gaskin which related to the records of the person in care. (In Gaskin the European court had held that there was a right of appeal, which led to the Data Protection Act 1998.) Nor was there any right of appeal against a voluntary adoption agency's decision made under regulation 15(2) of the 1983 regulations under domestic law. The only remedy was judicial review.
The secretary of state had no duty to make available an appeal procedure nor had he any power to compel the disclosure of adoption records to an adopted person. Section 58A or the Adoption Act 1976 could not be read so as to give that power to the secretary of state. It was to be regarded as an information gathering tool for statistical purposes and no more. The application for judicial review against the secretary of state failed.
Richard White
White and Sherwin Solicitors
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