Legal Updates

The court of appeal has considered the disclosure of reports in adoption proceedings in the light of Article 6 of the European Convention on Human Rights in Re X (children) (adoption; confidentiality) 30 May 2002.

Unknown to the birth parents the prospective adopters were a couple who had previously fostered the children. The birth parents withheld their agreement to adoption and made an application for contact.

The birth parents' solicitor learned that the prospective adopters had fostered the children and applied to the court for permission to disclose their identity to the birth parents. The prospective adopters and local authority opposed direct contact and the prospective adopters insisted on anonymity.

The judge decided that there was a real possibility of significant harm to the children from two sources: (i) from the intervention of the birth parents in the lives of the adoptive family; and (ii) from the increased anxiety of the adopters, if their identity was disclosed.

The judge had no doubt that the interests of the children lay in favour of anonymity being preserved, and refused the birth parents' solicitor's application. The solicitor appealed on the basis that it was contrary to the birth parents' right to a fair trial as provided by Article 6 and contrary to their right to family life under Article 8. It was contended that the loss of opportunity to comment on the observations filed or evidence adduced by the other party was unfair, and deprived the birth parents of the right to participate effectively in the decision making process about their children.

The appeal was dismissed. Although the right to a fair trial was absolute and unqualified, the content of a fair trial in any particular case was flexible and depended upon the context. Departures from the usual requirements of an adversarial trial, had, of course, to be for a legitimate aim and proportionate to that aim.

Protecting the welfare of vulnerable children would undoubtedly be a legitimate aim. The issue required the striking of a fair balance between the various interests involved: those of all the parties, particularly the birth parents and the children, proper testing of the evidence and the arguments before the court; the interests of the children, their birth family and their prospective adoptive family in protecting their family and private lives from unjustified interference; and the interests of the children in being protected from harm and damage to their welfare, whether in the short, medium or longer term.

The practice of anonymity in adoption proceedings counterbalanced the assumption that parties should know everything the court knew. The issues in the case were well known and instructions could be taken from the birth parents in advance. They could be available for consultation should any matter emerge on which their instructions were necessary. Their case could be put to the prospective adopters and to the social worker without them being present.

The main problem was whether the judge could give a proper explanation of the reasons for his decision without revealing the truth. It was difficult to place a sibling group together, yet the children had found a family which had made great progress with them.

The prospective adopters were a precious resource to the children. In those circumstances, the judge's exercise of his discretion in refusing to order disclosure of the prospective adopters' identity had not been plainly wrong. The problems facing the parents' legal team were not insurmountable and were not so great as to outweigh the interests of the children in maintaining a secure and happy home with the prospective adopters.

Richard White

White and Sherwin solicitors