FL v Registrar General

In summary, the applicant seeks to argue, subject to what follows, that:

The Registrar General in the summary argues:

As stated, WC was born on 6 July 1923 and was adopted out of his birth family on 4 May 1927.  He died on 6 September 1999.

The applicant was born on 14 December 1947.  She married in 1967 and left England to start a new life in South Africa in 1976.  The applicant, however, retained strong family ties with the United Kingdom, two of her own children living here. 

Little is known by the applicant and WC's surviving family, her own mother having died in May 2003, about his earlier life and his adoptive family, and nothing is known about his birth family.  In his lifetime it was not possible to make enquiries of him because of his irascible and forbidding temperament and as far as is known, his own lack of interest for whatever reason, or, indeed, refusal to be interested in, his own past.

All the applicant has relating to her father is the revised birth certificate, a certified copy of the entry in the Adopted Children Register for 1927, and his death certificate.  The court where he was adopted (see paragraph 1 above) no longer exists, its files were transferred some 10 years ago to the Gee Street Court on the edge of the City of London, but a search of their archives by the court librarian has proved fruitless, even though tantalisingly other files of the same vintage have been located.

In a number of moving paragraphs of her statement of 29 December she sets out her reasons for seeking the information from the Registrar General.  I shall summarise them, although I shall deal with them a little more fully in due course.  Turning to section C, page 13, paragraph 6 one finds there, and in succeeding paragraphs up to and including paragraph 12, her view.  She would wish, understandably, to know more of her father and in order to achieve that goal must have the information which the Registrar General currently holds.  She believes her father suffered from mental health problems which may have been exacerbated by his adoption.  She describes how his behaviour impacted on both her and the wider family, that he was a jealous, aggressive and obsessive man with low self-esteem and feelings of inadequacy.  He was controlling and wished to be the centre of attention.  He readily flew into rage.  Substance abuse as it is called, in fact alcohol, killed him he being diagnosed at his death with cirrhosis of the liver.  She describes the impact of her behaviour on her childhood, the fear in which she, her sibling and her mother lived, and the shame brought upon the family by the father's behaviour.  She hopes that by learning more of his birth circumstances that she would begin the process of what she calls "healing and forgiveness", albeit posthumously.  She describes in the final one of those paragraphs namely number 12, her own struggle to overcome the consequences of her father's character, temperament and behaviour, but how there is yet further to go and it is her hope that access to this information will be the key to that journey.

In a number of paragraphs following on she describes what she will do with the information.  I turn to section C, page 14, paragraphs 13 to 16.  It is only necessary to summarise them but what it amounts to is that she will use the information to spread the net of inquiry further and either on her own or with the assistance of an agency can begin to piece together the background of her father.  For instance, she would wish to know why his own mother gave him up, what circumstances forced her to do this, why was he taken in by an elderly couple as his adoptive parents appeared to be, and was he related to them by blood?  She would wish to locate any descendents of her birth relatives on her father's side.  It would help her, she says and, indeed, her own children understand their roots and identify family resemblance, talents and skills.  Finally, in paragraph 16 she says:

In support of her case, she has filed a statement dated 16 December 2009 authored by Mrs Julia Feast.  That author, having established her professional qualifications and her post with The British Association for Adoption and Fostering, frequently and commonly known by its acronym BAAF and details of her experience, goes on to set out a number of considerations which she, Mrs Feast, submits should weigh heavily with the court when construing the legislation and when contemplating the legislative and social climate in relation to the law and practice of adoption and in exercising judicial discretion.

She emphasis the increased and increasing "transparency" of the adoptive process and the very significant changes in recent years granting the adopted greater access subject to the statutory regime to information about their birth families and the perceived significant psychological advantages to the adopted of acquisition of this information.

Mrs Feast also deploys summaries of research projects undertaken in recent years as well as anecdotal evidence to support her assertions as to the above perceived advantages.

In paragraphs 15 to 18 of her document she sets out those perceived advantages but this time in relation to descendents of the adopted person.  In obtaining information, in part in paragraphs 16 and 17, she summarises those perceived advantages and benefits as follows:

She also states aspects of the recent legislation, including the 2002 Act, and the legislative process which led to its passing, asserting in paragraph 19 of her statement the following:

However, she goes on to say that in consequence, the descendents of the adopted person are unfairly discriminated against and that:

Finally, in paragraph 26 she asserts the following:

May I say at the outset of this section that I am grateful to both counsel and also the applicant's solicitor, Mr White, a very experienced and if I may say so, distinguished specialist solicitor in this field for the clarity of their written submissions.  I hope they will all forgive me, interesting as it was for me to trace the legislative history of the provision I am construing and the background to the statutory development, if I do not here set it out in the extensive detail they have provided to me, save is strictly required for the purposes of my decision.

Mr Leech for the Registrar General submits that in construing the statutory provision:

Mr Leech also submits if the words are clear there is no need to trace the legislative genesis nor, indeed, research, white papers, draft bills, debates, correspondence, etc.  This is not, he says, a case where the "rule" in Pepper v Hart [1993] AC 593 comes into play, for there is no ambiguity in the words I am construing.  I respectfully agree with his submissions and approach my task on that basis.  Although, I have considered for reasons which will become apparent, some authorities on earlier statutory provisions.  See in particular but not exclusively, paragraphs 28 to 37 below.

As to the submission of the applicant that I should, in effect, find that there is a lacuna in the statutory framework and interpret the provisions more sympathetically in the case of the statutory excluded group, it is necessary to set the scene a little more carefully than I have done earlier. 

The 2002 Act does not include descendents of an adopted person within the statutory definition of birth relatives (see above) and they fall outwith the structures available to such statutorily defined birth relatives in gaining access to information about the adopted person.  See section 98 of the 2002 Act.

I do not share the view in what I have perceived to be the applicant's implied invitation to me, that it would be open to me and appropriate for me to approach the issue as if FKL and those in a similar position to hers should rightly have the opportunities granted to the defined categories, and that I should consider section 79(4) of the 2002 Act on the basis that such an applicant should be viewed more favourably in construing the expression "exceptional circumstances", than would be the case of complete strangers.  It is not, in my view, for me to in effect, rewrite the plain words of section 98 of the 2002 Act so as to include such acts nor, indeed, should I approach the case as if it were some Parliamentary oversight and make allowance for the omission.  This is pre-eminently a matter for Parliament.  Until Parliament does address that issue, if it ever chooses so to do, I must continue to recognise that for whatever reason, which I decline to speculate upon, Parliament intentionally left such a group out of the definition which had they been included would have afforded them different rights and different routes to obtaining information.  Nothing I say in this judgment should be read as indicating any view on whether or not this group should be so included within the definition in section 98 of the 2002 Act. 

As earlier noted it was the submission on behalf of the applicant in the written documents provided that, as I understood it, I should construe the phrase "in exceptional circumstances" in a manner consistent with Thorpe J's (as he then was), interpretation of a similar but not identical provision in section 50(5) of the 1976 Act.  In Re H (adoption:  disclosure of information) [1995] 1 Fam. C.R. 546 Thorpe J. construed the earlier legislative provision.  In that case he was assisted by the submissions of Mr Christopher Blake of counsel for the Registrar General and Mr Andrew McFarlane Q.C. (as he then was), now McFarlane J. for the applicant group.  Thorpe J. quoted, in effect, a submission of Mr McFarlane that:

In his oral submissions to me, Mr Vavrecka, appearing on behalf of the applicant seemed at times to be shifting away from such an approach and emphasising that I can only look at the strict wording of the statute and construe the word "exceptional" accordingly.

Assuming for the moment that the submission outlined in paragraph 28 above remains, however, for me to consider the Registrar General submitted that to do so would be not only to ignore the plain words of the 2002 Act but would also ignore what he submitted were the two relevant and persuasive authorities, that of Cazalet J. in D v Registrar General [1996] 1 FLR 707 and the appeal to the Court of Appeal arising from the same case, also reported as D v Registrar General [1997] 1 FLR 715, the constitution of the Court of Appeal comprising Sir Stephen Brown, the President, Pill LJ. and Sir Patrick Russell. 

In the first case, Cazalet J. was considering, as had Thorpe J. before him in the case of Re H (see above), the provisions of section 50(5) of the 1976 Act, in the context of the refusal by a Local Authority holder of adoption records to release in favour of the birth mother, who was seeking information from the Registrar General following on from the Local Authority's refusal, in order to discover non-identifying information about the daughter she had placed for adoption many years before.

Cazalet J said this:

However, he went on to say:

The Court of Appeal decision in the same case, D v Registrar General [1997] is also reported in [1998] Fam, page 19, et sequenta but I shall refer to the report in the Family Law Reports because Mr Leech has pointed out a crucial error in the family reports at page 27 where an erroneous double negative is used to miss-describe the court's observations on the decision of Cazalet J. in the court below.

The President gave the lead judgment and the other two members of the constitution agreed with him.  In upholding Cazalet J, they approved his approach as set out in the quotation at paragraph 33 above.  The President went on to say this:

Later in his judgment at 723 (a) to (b) he observed:

Although the factual matrix of Re D was wholly different from the one I am considering and the statutory provision itself is different, I have included these extensive quotations to show, if nothing else, the degree of caution with which the Court of Appeal approached the exercise of discretion as a matter of public policy. 

As is obvious by now to any reader of this judgment, the 2002 statute has by the inclusion of the words "in exceptional circumstances" narrowed the test from that set out in section 50(5) of the 1976 Act and appears more in line with the observations of Sir Stephen Brown the President in Re D above.

I have in setting out these passages and reading the decision in Re D in its totality considered the point therein made that in those cases the court was considering also the issue of the advantage, or potential advantage, to the adoptee.  That, of course, is not a feature of relevance in the instant application and I do not for my part, regard the issue of an advantage to the adopted person as an essential requirement of any test before permission can be given under section 79(4) of the 2002 Act for the two following reasons.

I was, when first reading the submissions of the applicant, interested to see if 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, be that the Magistrates Court, the County Court or the High Court, pursuant to the relevant provisions of the Adoption Rules and/or Magistrates' Court Adoption Rules of whatever vintage is relevant), be that under the 84 or the 2005 rules.  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 section 79(4) of the 2002 Act.  This impression was reinforced in the course of oral submissions made on behalf of the applicant.

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 if I did choose to say in this judgment on the subject it 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.

Whilst having considerable sympathy both for the applicants to those courts and for the Registrar General who may well be faced with an upsurge in applications like this one under the 2002 Act, if consistency of approach by those courts leads to more refusals of such requests, I do not feel able to give any such guidance for the following four main reasons:

Mr Vavrecka has drawn my attention to the decision of Gunn-Russo v Nugent Care Society & Secretary of State for Health [2001] 1 FLR 1 a decision of Scott-Baker J as he then was on considering an application for judicial review.  The decision itself does not address directly the precise question I am considering but in Mr Vavrecka's submission it traverses similar terrain in one sense, namely, if I have understood his submission and proposition deriving therefrom correctly, that a court, or in that case an agency, holding relevant documentation should in exercising its discretion look in a broad se, where the file contained classified material, needs still to be protected.

Two passages in particular are said by Mr Vavrecka to be relevant, although I emphasise that the context of them set out between paragraphs 46 and 55 of the report has been considered by me.

The first relevant paragraph for these purposes is number 48 of the judgment:

The second relevant passage in my view is the closing part of paragraph 53 of the judgment:

That was not the end of the learned judge's consideration of this issue because in paragraph 54 he went on to say this, crucially as I find:

It does not seem to me that the presumed death of the adopters here, for WC's adoptive parents who would now been in their late 90s or early 100s, if alive, is or can be anything other than a relevant factor to be considered by the court, but that it is of one and many and must be viewed alongside amongst other features, public policy and the public interest in maintaining confidentiality, which I would add, is also not automatically determinative but which is a powerful consideration. 

Article 8, paragraph 1 of the Convention gives the right to respect for private and family life to an individual.  By virtue of Article 8, paragraph 2 such rights can be the subject of intervention if such intervention is lawful, necessary and proportionate.

In his written submissions at section B, page 13(l) Mr Vavrecka invites my attention to the following:

In that same paragraph at (f) he then goes on to say this:

I regret to say that I consider Mr Vavrecka goes far too far in making such assertions.

I take note of the fact that FKL has apparently exhausted all the lawful options available to her in her search for more information about her father, (see in particular section C16 paragraphs 17 to 23 inclusive).  I do not, for one moment, doubt the strength of purpose or the profound desire for information which lies behind FKL's search, but I do not think that the nature of that search and its many stages, and its failure to provide necessary information, helps me in determining whether or not her reasons are "exceptional".  I so say for there will be many, sadly, who find themselves in her position having exhausted all other remedies, but that does not of itself open the door of exceptionality.

I turn now to consider whether or not in exercising my discretion I should find that the matters put forward by FKL are exceptional or not.  In reaching my determination I have taken account of her statement of 29th December and the lengthy appendix to it, and exhibit FL2 called "life timeline" in which FKL includes much detail of harrowing experiences, both for her, her mother and her brother arising from the behaviour and described character of her father.  I have also considered the summarised reasons for her application set out at paragraph 52 of the document entitled "details of claim" to be found at section B, page 12.

I approach my task well recognising that to FKL and those most intimate with her, her husband who has been in court with her throughout this hearing, her children, other relatives and friends, will view these matters as subjectively exceptional.  If I may say so, no one reading her documents could fail to be moved by her account, but I have to look at these issues objectively and in the context of the wider public interest, not only the issue of confidentiality addressed by Scott-Baker J. in Gunn-Russo v NSC (above), but in all its aspects which include the interests of society and protecting the rights of potential third parties who might well be profoundly affected in due course by such disclosure.

The first advanced reason to be found at section C (13) paragraph 6 is that FKL would wish "to know more about my father".  This is, although entirely understandable, nothing out of the ordinary for it applies to any curious human being anxious to understand their forbearers and the effect those forbearers had in shaping their own genetic inheritance, possibly character and development. 

The "life timeline" document at section C28 to 32 contains, if I may say so, many examples of egregious behaviour by her father which impacted upon her mother, herself and her sibling and which may have been borne of the "mental health difficulties" to which she elsewhere refers.  They include examples of bullying, rudeness, financial irresponsibility, persistent excessive alcohol consumption with all its consequences, including such was the excessive nature of his consumption, cirrhosis of the liver, the condition from which he died, and many examples of aggression and intolerable behaviour.

It may come as a profound surprise to FKL and her family, her adult married life being so very different from her mother's and her husband being so supportive of her in her quest as I was well able to see when watching them throughout the court hearing last Friday, that what she has described, whilst profoundly shocking to the individuals concerned, does not in my judgment fall within the category of exceptional but is all too sadly a tale too often told, both within the forensic area and outwith.

FKL averts to unspecified mental health difficulties in her father and what she believes was an admission of her father to hospital following an assessment of him under the Mental Health Act, 1983.  She is not in a position, not having had sight of his health records, to inform me of whether that was a section 2 or section 3 admission nor, indeed, of any further details about it.  She wants to track his birth family's history to see if this "illness" (although I interpolate I do not know whether there was diagnosed any such), was hereditary and whether she and her brothers remained at risk of such problems.  There is no evidence of any kind put forward to suggest that she or her brother nor, indeed, any other member of her family, including her children, do suffer or have ever suffered from any such illness, and there is no evidence of further engagement with the mental health services referred to above.  Again, it is a surprise to many to hear of the statistically very significant percentage of the population who at one time or another in their adult lives will encounter first-hand as patients the mental health services or at second-hand, being associated with such a patient.  I regret to say that again, viewed objectively, I do not find this factor to fall within the category of exceptional.

Her father's behaviour, social isolation, his jealousy, aggression and obsessive nature may FKL speculates, have been "exacerbated" by his adoption.  Yet, sadly and all too evidently, many in society suffer from such characteristics and such behaviour and there is no obvious or necessary connection between them and adoptive status.  This too I do not regard as exceptional.

FKL says:

I do not feel the need to set out each and every one of the further matters she also lists, for they are essentially in their different formulations, variations on the themes illustrated above.  Neither singularly nor in their totality do these facts referred to in paragraphs 47 to 55 above amount in my judgment to exceptional circumstances, such that I would grant her the relief she seeks.

I do not for one moment doubt Mr Vavrecka's observations to be found at B12, paragraph 53, 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.