Birth parents refused right to know identity of adopters

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