In the Matter of X (Adopted Child: Access To Court File)

I have before me an application raising a simple question of considerable general importance to which the answer is not at first sight at all clear.

The essential facts are shortly stated. X, as I shall refer to him, was born on 5 November 1929. On 15 January 1930, justices sitting in Somerset in the Petty Sessional Division of Weston-super-Mare made an adoption order in relation to X under the Adoption of Children Act 1926 to a married couple, Mr and Mrs C. Mr and Mrs C are dead. X died in 2011. X’s daughter, Y, the applicant before me, seeks access to the original court file, which has been located, and which I have read. Her purpose is to discover more about X’s birth mother. Who was she? What part of the country did X come from?

The question, on which almost astonishingly there is no direct authority, is what principles should govern the determination of such an application. More specifically, should Y be allowed access to the court file?

Y has appeared throughout in person. Her original application was by letter dated 5 November 2013 (as she pointed out, her father’s birthday) addressed to a member of the family department at Bristol County Court. Having set out all the steps she had taken since her father’s death in her quest to obtain the information she was seeking, her letter continues:

“ … 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.

We have a child in our family my sister’s Granddaughter she has epilepsy and is very disabled, where did that come from, is it likely to happen again.

In a while I will be going to my Father’s grave to put flowers as it is his birthday and once again I will wonder who he was, did his Mother ever look for him, if she did she never found him, but I can find her, and put this story to rest once and for all … ”

The original adoption file was retrieved from Weston-super-Mare and the papers were put before His Honour Judge Wildblood QC on 27 February 2014. The next day, 28 February 2014, he directed the matter to be listed before him on 25 April 2014. Y attended in person. She indicated that she would obtain advice. Judge Wildblood directed that, subject to my agreement, the application should be listed before me during the week commencing 30 June 2014. On 19 May 2014 Judge Wildblood made a further order listing the matter before me on 3 July 2014.

On 6 June 2014, Judge Wildblood made an order which, after reciting that the court had referred to section 79(4) of the Adoption and Children Act 2002 (see below) and to FL v Registrar General [2010] EWHC 3520 (Fam), contained three provisions which I should mention. First, the order directed that in addition to her request to inspect the documents held on the court file, Y was deemed to have applied for an order under section 79(4). Second, it provided that notice of the application was to be given to the Registrar General in accordance with rule 19.2 of the Family Procedure Rules 2010. Third, it invited the Official Solicitor to identify an amicus curiae (advocate to the court).

Having taken legal advice, and understandably been advised that she would need to instruct counsel, Y wrote to the court that, having deliberated long and hard, she felt she had no alternative but to represent herself, as she was unable to pay the costs involved. Happily, however, the Official Solicitor agreed to appoint an advocate to the court and instructed Mr Alex Forbes.

On 23 June 2014 the Official Solicitor received an email from the Registrar General which observed that usually an application under section 79(4) was made only where the court records were not available, which drew attention to proposed changes in the law, (Footnote: ¹) and which concluded:

“Hence we are not looking to object to an order under 79(4) if the Court deemed it appropriate.”

The email indicated that it was unlikely to be necessary for there to be any attendance at the hearing on the part of the Registrar General.

Y supplemented her letter of 5 November 2013, with a statement dated 21 June 2014. She sets out further details of Mr and Mrs C’s family, and describes how, some years later, they adopted a girl, Z, who was in fact the daughter of Mrs C’s sister and her (the sister’s) husband. Z is now dead. Y says that she has always believed that X was in some way related to Z and speculates that perhaps another of Mrs C’s siblings was X’s mother. Her statement suggests that, if given the information she seeks, Y would try to make contact with X’s birth relatives, for she says “If I were to be successful I would be happy to have an intermediary to make contact with birth relatives.”

It was in these circumstances that the matter came on for hearing before me on 3 July 2014. Y appeared in person. Mr Forbes appeared as advocate to the court. He had lodged detailed and most helpful written submissions. He was also able to supply me with a copy of the skeleton argument which Mr Stewart Leech (now QC) had prepared, as counsel for the Registrar General, for the hearing before Roderic Wood J in 2010 of FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630. I am grateful to Mr Forbes, as I am sure Y is also, for his great assistance in illuminating a surprisingly complex area of law and for his balanced and measured submissions.

The original court file contains the following documents:

There are no other documents in the court file and nothing of significance beyond what I have already noted. There is nothing to indicate why X was adopted (beyond the assumption that, because his father was not identified on his birth certificate, his parents were not married). There is nothing in the court file likely to cause Y any distress. It is 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.

It follows from this, that 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) the letter from X’s grandmother.

I turn to the law.

A variety of statutory regimes apply to the disclosure of adoption records and, more generally, of information relating to adoptions and adoption proceedings. These regimes differ depending upon who is seeking disclosure, who disclosure is being sought from and when the adoption order was made. There is no need for me to embark upon even the most summary analysis. For present purposes it suffices to note that the adopted person has a right, on request, to receive certain specified information from the adoption agency in accordance with section 60(2) of the Adoption and Children Act 2002, from the court in accordance with section 60(4) of the 2002 Act, rule 14.18 of the Family Procedure Rules 2010 and PD14F and more generally in accordance with regulations made pursuant to sections 9 and 98 of the 2002 Act.

Where, as in the instant case, the person is a descendant of the adopted person, there are, at present, (Footnote: ²) only two statutory routes available. One is in accordance with section 79(4) of the 2002 Act. So far as is material for present purposes, section 79 provides as follows:

“(1)

The Registrar General must make traceable the connection between any entry in the registers of live-births or other records which has been marked “Adopted” and any corresponding entry in the Adopted Children Register.

(2)

Information kept by the Registrar General for the purposes of subsection (1) is not to be open to public inspection or search.

(3)

Any such information, and any other information which would enable an adopted person to obtain a certified copy of the record of his birth, may only be disclosed by the Registrar General in accordance with this section.

(4)

In relation to a person adopted before the appointed day the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in subsection (3) to a person.”

I need not refer to the statutory definition of “the appointed day” in sub-section (9). Suffice it to say that X was adopted before the appointed day.

The other is in accordance with FPR 2010 rule 14.24:

“Subject to the provisions of these rules, any practice direction or any direction given by the court –

(a)

no document or order held by the court in proceedings under the 2002 Act will be open to inspection by any person; and

(b)

no copy of any such document or order, or of an extract from any such document or order, will be taken by or given to any person.”

Where, as in the instant case, the adoption order was made not under the 2002 Act but under one of its predecessors, the matter is regulated by rule 53(4) of the Adoption Rules 1984, SI 1984/265, or rule 32(6) of the Magistrates’ Courts (Adoption) Rules 1984, SI 1984/611, both of which remain in force by virtue of paragraph 4 of The Courts Act 2003 (Revocations, Savings and Transitional Provisions) Order 2005, SI 2005/2804. The relevant rule in each case provides as follows:

“Save as required or authorised by a provision of any enactment or of these rules or with the leave of the court, no document or order held by or lodged with the court in proceedings under the 1958 Act, the 1968 Act or Part I of the 1975 Act (or under any previous enactment relating to adoption) shall be open to inspection by any person, and no copy of any such document or order, or of an extract from any such document or order, will be taken by or issued to any person.”

As will be appreciated, although there are a few minor differences of language, the substance of the 1984 rules corresponds precisely to the substance of FPR 2010 rule 14.24. In each case the court is given power, exercisable in the particular case (in distinction to any power exercisable in accordance with statute, rule or practice direction, and therefore whether or not disclosure would be otherwise be permitted), to permit the opening to inspection or provision of copies of any “document or order” held by the court. There is no expressed limitation on this power: see the words “Subject to … any direction given by the court” and, previously, “Save … with the leave of the court.”

It will be noted that section 79(4) includes, as FPR rule 14.24 and its predecessors do not, the qualifying expression “in exceptional circumstances.” This phrase was introduced into section 79(4); it did not appear in the original statutory provision, section 11(7) of the Adoption of Children Act 1926, nor in its immediate predecessor, section 50(5) of the Adoption Act 1976. The meaning of that provision had been considered by Thorpe J in Re H (Adoption: Disclosure of Information) [1995] 1 FLR 236 and by Cazalet J and then the Court of Appeal in D v Registrar General [1996] 1 FLR 707, on appeal [1997] 1 FLR 715. (Footnote: ³)

For present purposes all that matters is what Sir Stephen Brown P said in D v Registrar General [1997] 1 FLR 715, 722:

“It seems to me that it would be unwise and indeed unnecessary to seek to put a gloss, as it were, on the statute, but I am concerned that by the approach adopted by Thorpe J the language used does seem to suggest that something less than an abnormal situation might be acceptable for the making of such an order. In my judgment, it is necessary to have regard to the mandatory language of s 50(5) of the Adoption Act. That is to say the precise words of the subsection:

‘… the Registrar General shall not [mandatory] furnish any person with any information contained in or with any copy or extract from any such registers or books except in accordance with section 51 or under an order of any of the following courts …’

It seems to me that the use of the word ‘shall’, coupled with the use of the words ‘except in accordance with section 51 or under an order’ imports an element of the exceptional into the situation.

… I am concerned that the phraseology endorsed by Thorpe J in Re H might be perceived as indicating a situation which is less than the wholly exceptional.”

The President added (page 723):

“I believe therefore that the situation of ordering disclosure should be approached with great caution. There is not of course a statutory test, but I consider that something requiring an exceptional ‘need to know’ the information which it is sought to obtain should be established.”

D v Registrar General was a case in which a birth mother was seeking to trace her daughter, who was born in 1959 and adopted in 1960. The President observed (he was giving judgment in December 1996) that:

“It may well be that as time has moved on the approach to adoption has become more relaxed. But it must be remembered that in this instance, the adoption took place as a fully closed adoption when a baby was settled into an entirely new family. It is impossible to speculate as to how this middle-aged lady might react to any inquiry however delicately made to the circumstances of her life which might reveal what to her are the unknown circumstances of her birth.”

Section 79(4) was considered by Roderic Wood J in FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630, where the application, as in the instant case, was by a woman, FKL, whose father had been adopted a very long time ago, in that case in 1927. Roderic Wood J held that “exceptional” in section 79(4) meant precisely that, 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”, and that the circumstances of the case were not exceptional. At the end of his judgment, Roderic Wood J said this (paras 61, 63):

“61

FKL says:

‘Although it was my father who was adopted and not me, the void created by his unknown background has affected me enormously.’

I do not doubt that for one moment, but it is an issue with which many in the population, even if I were to limit my consideration to the children or grandchildren of adopted persons, struggle with, and again, whilst recognising its profound sadness to her, it does not in my view qualify for exceptionality.

…

63

I do not for one moment doubt [counsel]’s observations … that FKL’s grounds for seeking this information are valid and cogent and for what it is worth, she has my profound sympathy as she struggles to come to terms with the perplexing riddles of the human condition, but that sympathy should not and cannot cloud my discretionary assessment.”

There is so far as I am aware no direct authority on rule 14.24 or its predecessors, and neither Mr Leech nor Mr Forbes was able to point to one. The matter was touched on by Roderic Wood J in his judgment in FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630, paras 40-42:

“40

I was, when first reading the submissions of the applicant, interested to see … the generalised assertion made with no supporting evidence (namely that in cases where the adoption files were still in existence, someone in the position of the applicant might apply to the court making the original adoption order … ) … My impression on reading this part of the material is that the advocate was suggesting that the approach of each court operating up and down the country was lacking in consistency and that the very procedure for making such an application, let alone the test applied to such an application when it was being considered, was lower than that required by s 79(4) of the 2002 Act. This impression was reinforced in the course of oral submissions made on behalf of the applicant.

41

Through Mr Leech, the Registrar General expressed his concern should indeed this be the reality (namely variable practice up and down the country) and in pursuit of some guidance and in the absence of any authority on the subject, and further bearing in mind that anything I did choose to say in this judgment on the subject would be obiter, he invited me to give my views on the desirability for, and the nature of, the proper approach to such applications in those courts.

42

Whilst having considerable sympathy both for the applicants to those courts and for the Registrar General … I do not feel able to give any such guidance for the following four main reasons:

(i)

the issue is not directly before me;

(ii)

the assertion of variable practices is unsupported by evidence;

(iii)

the issue is being argued before me tangentially since it is not at the heart of my inquiry and the exercise of my jurisdiction;

(iv)

a number of interested parties might well, understandably, wish to intervene and make submissions.

For those main reasons, but they do not amount to an exclusive list of considerations, I decline the Registrar General’s invitation and such an analysis must abide the event with a proper and fully argued case.”

Before Roderic Wood J, Mr Leech had argued (I quote from his skeleton argument) that what Sir Stephen Brown P had said in D v Registrar General should apply to all applications, whether under the Act or the Rules. He said, “The Registrar General submits that, from a public policy perspective, it is vital that the statutory code governing access to information is not undermined or circumvented by reliance on secondary legislation. If the Rules provide a free-standing or alternative means to access information outside the statutory machinery, it would be wrong in principle to apply a different and lower threshold than “exceptional circumstances”.”

Before me, Mr Forbes – who, to be clear, was appearing before me as advocate to the court, not as counsel for the Registrar General – adopted a somewhat different stance. He helpfully took me to the judgment of Scott Baker J, as he then was, in Gunn-Russo v Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566, [2002] 1 FLR 1. That was an application by an adopted child for judicial review of the decision of an adoption agency refusing her access to some of her adoption records. The claimant had been adopted in 1948. She discovered the identity of her birth parents in the 1970s, met her birth mother and remained in regular contact until the mother’s death. Her birth father had died before she located him. Both her adoptive parents had died. The adoption agency, which had already given her some of the material in the adoption file, was not prepared to give her that part of the file relating to the adopters or the birth parents.

As will be appreciated, both the statutory provisions with which Scott Baker J was concerned and, indeed, the forensic setting, were entirely different from the case before me. But there is, Mr Forbes suggests, and I agree, assistance to be derived from some of Scott Baker J’s observations in that part of his judgment, headed ‘Confidentiality’, set out in paras 46-55. It requires to be read in full, but I can be selective.

Scott Baker J identified the issue (paras 47-48):

“47

As long ago as 1972 the report of the Departmental Committee on the Adoption of Children (the Houghton Committee) reported that the weight of evidence was in favour of freer access to background information and that this accorded with their wish to encourage greater openness about adoption … The balance has continued to shift towards greater freedom of information to adopted people. It is now recognised that many adopted people wish to have information about their history and background including the reasons for their adoption. Many find it important to have a complete personal history in order to develop a positive sense of identity.

48

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.”

He said (para 53), that he was not concerned with whether a duty of confidentiality existed or exists, but whether it should be maintained in the claimant’s case in the light of what he held was the adoption agency’s “unrestricted” discretion under the relevant statutory provisions.

For present purposes, the most important part of what Scott Baker J said was as follows (paras 53-55):

“53

… It is, in my judgment, incumbent on an adoption agency exercising such a discretion to have in mind all the circumstances of the case. A very important, perhaps crucial, consideration in this case is the long passage of time since the adoption order was made. This, plus the fact that none of the relevant people other than the claimant is still alive, suggests that there is little if any purpose in maintaining confidentiality from the viewpoint of those who imparted the information. Balanced against this is the genuine interest to the claimant in receiving the information. Viewed on this basis it seems to me that the scales would be likely to come down firmly in favour of disclosure.

54

That, however, does not completely dispose of the problem, because there is still the public interest element in maintaining the confidentiality of adoption records. Clearly it would be unsatisfactory were public confidence in the integrity of confidential information supplied during the adoption process to be undermined. Obviously great care is needed before confidential records are disclosed. The problem is not a new one. It is not uncommon for a balance to have to be struck between disclosure and maintaining a confidence …

55

In my judgment the [agency] ought to have looked at each document individually and asked itself whether there was any compelling reason why that document should not be disclosed. Most reasonable people would not I think feel that after half a century disclosure would be likely to impair public confidence in the integrity of the confidentiality of the system. After all a great many public records are now disclosed after a lapse of 30 years.”

He went on to explain (paras 56-65) why Article 8 of the Convention, and the Strasbourg jurisdiction exemplified by Gaskin v United Kingdom (1990) 12 EHRR 36 (see now also Miklovic v Croatia [2002] 1 FCR 720) added nothing to the common law in this regard.

In the light of all this, Mr Forbes submitted that the following propositions are established:

I return to the two applications before me.

So far as concerns the application under section 79(4), I follow the approach adopted by Roderic Wood J in FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630. If, as I respectfully agree, the facts of the case before him were not “exceptional”, then it is difficult to see how the facts of the case before me can be any different. In my judgment, the circumstances of the present case are not “exceptional”. And if that is so, I do not see that I can properly grant relief under section 79(4) merely because the Registrar General’s stance is as I have described it.

The real question is whether I should grant Y the relief she seeks under the predecessor of rule 14.24. I approach that question following the approach indicated by Scott Baker J in Gunn-Russo v Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566, [2002] 1 FLR 1, and, more specifically, adopting the approach summarised by Mr Forbes. In my judgment there is nothing, whether in D v Registrar General [1997] 1 FLR 715 or in FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630, which requires me to apply in the case of an application under rule 14.24 (or its predecessors) the same approach as applies in the case of an application under section 79(4). Rule 14.24, after all, is not subject to the qualification that it applies only “in exceptional circumstances”. I do agree, however, given the context, that an application under rule 14.24 should always be approached with an appropriate degree of caution.

Mr Forbes, whilst acknowledging that it is not for the advocate to the court to make a positive recommendation as to how the court’s discretion should be exercised, has helpfully identified the arguments pro and con. He suggests that the factors weighing in favour of disclosure include:

He identifies the factors weighing against disclosure as including:

As I have already indicated, the question is not, in the final analysis, one of exceptionality, so the points made by Mr Forbes as I have set them out in paragraphs 34(i)-(ii), although relevant are not determinative. As to the point in paragraph 34(iii), I do not in any way seek to encroach upon the Parliamentary process. My task – indeed my duty – is simply to apply rule 14.24 (or rather its relevant statutory predecessor) in accordance with the law and in the light of all the relevant circumstances of this particular case.

I have concluded that, in all the circumstances and applying the principles I have identified, I should grant Y the relief she seeks. I shall therefore make an order that she is entitled to inspect, at court in Bristol, the whole of the original court file relating to X’s adoption and entitled, upon payment of such reasonable copying charges as Her Majesty’s Court and Tribunals Service may direct, to obtain a copy of the whole of that file. I do not think it appropriate, let alone necessary, to impose any conditions or restrictions on Y’s use of the documents. I am content to leave that to her good sense and discretion.

I can set out my reasons quite shortly. I bear in mind in particular: