Life is a mysterious journey, often attended with hazards matching those in The Lord of the Rings. However, as TV programmes such as Who Do You Think You Are? illustrate, we all have a deep need to understand our place in the world and how we came to inhabit our own ‘mortal coil’. This can be particularly poignant for adopted people and their successors.

It fell to Sir James Munby (pictured), president of the Family Division, (with the assistance of Alex Forbes as advocate to the court) to unravel such an issue in a judgment handed down on 9 September.

The case (In the matter of X (Adopted Child: Access to Court File) [2014] EWFC 33) concerned an application by Y, the daughter of X who had been adopted in 1930 by Mr and Mrs C. Y sought access to the original court adoption file with a view to finding out more about X’s birth mother: who was she and which part of the country had X come from?

Relevant local authorities will be interested in this decision since (under section 3(1) of the Adoption and Children Act 2002) they have a duty to maintain adoption services meeting the needs of: (i) children who may be adopted, and their parents and guardians; (ii) those wishing to adopt a child; and (iii) adopted persons, their parents, natural parents and former guardians.

Background

The question, Munby said, ‘on which almost astonishingly there is no direct authority, is what principles should govern the determination of such an application’. In particular, ‘should Y be allowed access to the court file?’

Y (among other things) had indicated: ‘…my grandmother… is certainly dead by now, so I will not harm anyone by knowing her name. I will not be trying to contact her relatives or causing any trouble. I just want to know who my dad was, who his mother was, where he was born, and who I am, my sister, my brother, my children and grandchildren.’

However, the road to the answer was, as Sir Paul McCartney might have put it, ‘long and winding’.

Munby noted that there was ‘nothing in the court file likely to cause Y any distress’ for it was ‘apparent that X’s birth mother, and her mother, knew the names and address of Mr and Mrs C, and that Mr and Mrs C knew the name and address of X’s birth mother’. Consequently ‘the only significant information Y would obtain if given access to the court file is (a) the name, address and occupation of X’s birth mother (and the name and address of her mother); and (b) [a] letter from X’s grandmother’.

The law

This was somewhat tortuous and will therefore be traversed only in summary and by helicopter. Munby noted that in respect of descendants of adopted persons where the adoption order was made before the Adoption and Children Act 2002, there are currently only two statutory routes available:

1. Section 79(4) of the 2002 act, which (among other things) empowers the court ‘in exceptional circumstances’ to order the Registrar General to disclose information ‘which would enable an adopted person to obtain a certified copy of the record of his birth’;

2. Rule 14.24 of the Family Procedure Rules (FPR) 2010, which enables inspection or copying of relevant court documents by direction of the court. However, where the adoption was made under a predecessor of the 2002 act the matter is regulated by rule 53(4) of the Adoption Rules 1984 (SI 1984 No. 265), or rule 32(6) of the Magistrates’ Courts (Adoption) Rules 1984 (SI 1984 No. 611) which also enable the court to allow inspection or copying of relevant court documents.

As to section 79(4)’s ‘exceptional circumstances’, the court (among other things) noted the observation of Roderic Wood J in FL v Registrar General [2010] EWHC 3520 (Fam) that ‘the descendant of an adopted person could not, for the purpose of an application under section 79(4), be treated more favourably than a complete stranger in construing the expression “exceptional circumstances”’.

The court, however, also noted Gunn-Russo v Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566, where Scott Baker J, as he then was, remarked that 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’.

Nevertheless, having proper regard to ‘the public interest element in maintaining the confidentiality of adoption records’.

In the light of relevant case law, the court ‘gratefully’ used the following summary of the legal position proposed by Mr Forbes which ‘so far as it goes, is both apt and accurate’.

1. The court has a discretion whether to disclose information contained in its own file to the applicant.

2. In considering whether or not to exercise that discretion, the court should have regard to all the circumstances of the case and should exercise its discretion justly.

3. The public policy of maintaining public confidence in the confidentiality of adoption files is an important consideration.

4. The duration of time that has elapsed since the order was made, and the question of whether any or all of the affected parties are deceased, are important considerations.

5. The nature of the connection between the applicant with the information sought from the court file is an important consideration.

6. The potential impact of disclosure on any relevant third parties, and any safeguards that could be put in place to mitigate this, is an important consideration.

However, since the facts of the case were not found to be ‘exceptional’ the court was unable properly to grant relief under section 79(4).

Fortunately for Y, however, this was not the end of the matter. For the relevant regulations are not subject to the ‘exceptional circumstances’ proviso, although they ‘should always be approached with an appropriate degree of caution’. In the circumstances, the court was able to grant Y the relief she sought under the predecessor of FPR 14.24, bearing in mind (among others) the following facts, namely that:

  • X, Mr and Mrs C and in all probability X’s birth mother are all dead.
  • X was adopted more than 84 years ago.
  • Y is X’s daughter.
  • Y’s reasons for wanting access to this information were found to be entirely genuine and understandable.

Any upset that might be caused to any of X’s birth mother’s surviving relatives is no more than speculative.    

So, in addition to meeting an apparent deep personal need for the applicant, the case also yielded valuable guidelines for all having future involvement in such complex and sensitive issues.

And on 29 September, the government announced that: ‘Children, grandchildren and other relatives of adopted adults can now trace back through their ancestors’ lives – helping them to unearth their family history, discover more about their medical background and reach out to long-lost relatives under new rules’, due to be effective by next month.

Dr Nicholas Dobson is a consultant with Freeths LLP specialising in local authority law and governance. He is also communications officer for Lawyers in Local Government

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