Woman wins rethink of adoption file refusal but fails in judicial review bid

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

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

Click here
for news report on case

More from Community Care

Comments are closed.