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GUNN-RUSSO v. NUGENT CARE SOCIETY v. SECRETARY OF STATE FOR HEALTH [2001] EWHC Admin 566 (20th July, 2001)
Case No: CO/4370/2000
Neutral Citation Number: [2001] EWHC Admin 566
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 20th July 2001
B e f o r e :
THE HONOURABLE MR JUSTICE SCOTT BAKER
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|
LINDA
GUNN - RUSSO
|
Claimant
|
|
-
and -
|
|
|
NUGENT
CARE SOCIETY
-and-
SECRETARY OF STATE FOR HEALTH
|
First
Defendant
Second Defendant
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Thomas de la Mare (instructed by Liberty for the Claimant)
Mr David Vavrecka (instructed by White and Sherwin for the
1st Defendant) and
Mr Rabinder Singh (instructed by Solicitor to the Department of
Health for the 2nd Defendant)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE SCOTT BAKER:
1. This case raises issues about the disclosure of adoption records by a
voluntary adoption agency. The Claimant, now in her fifties, was adopted as a
child at the age of two. The First Defendant, Nugent Care Society (NCS), were
formerly known as the Liverpool Catholic Children's Protection Society and are
the voluntary adoption agency that handled her adoption. The Second Defendant
is the Secretary of State for Health and is responsible for the regulation of
voluntary adoption agencies and the formation of adoption policy.
The Facts
2. For a number of years the Claimant has been trying to obtain information
about her adoption and related matters. Through her persistence she has been
able to ascertain a lot of information about her past, but there remains some
material that the NCS will not let her have. She seeks judicial review (i) of
the NCS's decision of 3 December 1999, notified on 8 December 1999, refusing
access to her adoption records, (ii) of the Secretary of State's decision of 30
August 2000 refusing to compel the NCS to disclose the records and (iii) of the
continuing refusal or failure of both in the light of the Human Rights Act
1998.
3. The Claimant was adopted in 1948. She discovered the identity of her birth
parents in the 1970s, met her birth mother in 1976 and was in regular contact
with her until her death in 1989. She was her birth mother's only child. Her
genetic father, who was in the United Kingdom as an American serviceman but had
returned to the United States of America, died in 1987, before she located him.
However she had made contact with two half sisters on her father's side. One is
older than the Claimant, the other younger. The older one supports the
Claimant's efforts to obtain full information about her birth. The younger one
was born long after the period covered by the relevant records. Both live in
the United States of America.
4. The Claimant's adoptive father died in 1970 and her adoptive mother in 1989.
It is difficult to see how any third party could now be adversely affected by
disclosure of any of the information sought. That information amounts to the
complete records held by the NCS relating (i) to her adoption and (ii) to
their dealings with her birth and adoptive parents in so far as such records
relate specifically to her. She feels, and I accept that this is a view shared
by many other people who have been adopted, that these records form an
important component in her quest to understand her childhood and thereby
complete her personal identity and self perception.
5. The Claimant has approached the NCS on various occasions for the provision
of information. Most recently she started correspondence in 1997 with a view to
obtaining the outstanding records, and I should emphasise that she has obtained
a good deal of material over the years but not everything. It is the
outstanding remainder that gives rise to this litigation. There is no doubt
that the Claimant has had a long struggle to obtain all the information that
she has now pieced together. Initially she did not even know about the NCS's
role in her adoption. She found out about them because she went to the
Liverpool city library in 1970 to ask about catholic adoption societies in the
area. In the early 1970s there was no right to trace birth parents or, if
traced, identify information about them. That has of course changed following
Section 25 of the Children Act 1975. The Claimant obtained a copy of her birth
certificate from the Registrar of Births, Marriages and Deaths in October 1998
having a year earlier obtained from the Bootle County Court copies of the court
records relating to her adoption. However, she remained very keen to
reconstruct the history of the first two years of her life. She said that it
struck her the only way she could do this was from the records kept by the NCS
which she believes contain, amongst other things, contemporaneous notes of
interviews and meetings with her birth and adoptive parents, letters between
the NCS and her adoptive parents and photographs. Obtaining all these would
help her to understand more precisely what happened.
6. The Claimant telephoned the NCS in 1997 to try and find out about the
missing two years. By this time both her natural parents and her adoptive
parents were dead, as was her father's wife. The nearest surviving relatives
were, and still are, two younger sisters of her birth mother and two half
sisters of her genetic father, who live in the United States. The NCS's
response was in their letter of 1 April 1997 enclosing a couple of documents
they felt she might not have and adding:
"As this is an adoption file, open access is not possible, but you have copies
of all the relevant documents that would be possible to pass to you. "
The writer concluded by suggesting an interview or group sessions with trained
counsellors.
7. The Claimant did not give up. In August 1997 she met Mrs Hennessy at the
NCS. Mrs Hennessy showed her a few documents but said she couldn't show her
anything else. The Claimant asked to take copies but the request was refused.
There followed a letter from NCS which said:
"The current legislation enables an adoption agency to give adoptees
information directly related to themselves. On your last visit Mrs Hennessy
showed you the file with information relating to your origins. Other parts of
the file relate to your adopters and these we cannot disclose to you, although
I am aware in the past this has happened.
The procedure we follow at present is covered by legislation and we are
regularly inspected by the Department of Health. We are not able to give out
the original file, as we need to keep it for 75 years."
8. The Claimant's efforts continued and in July 1999 the NCS's Acting Assistant
Director (Operations) offered her a meeting to "help towards resolving any
issues which you would wish to raise with us." The Claimant made it clear she
wanted to view her file. She was told this could not include her adopters' or
birth parents' files. On 19 August 1999 she wrote to the NCS enclosing a letter
to be presented to the Board of Governors at its next meeting. At that time she
was asking for "the ownership of her complete and original file, including all
third party information." She has, however, not pursued the claim to ownership,
which could not possibly succeed. The letter in response on 26 August 1999
said:
"I do understand your wish to have in your possession your file and the file
of your adopters and birth parents. Our policy is based on the premise that
there are a number of parties to an adoption including an adoptee, the natural
mother, the adopters. We have a responsibility to consider the rights of all of
these and achieve a balance.
Your request that the Governing Body of the Society reconsider its position is
noted and your letter will be presented. The Governing Body will wish to have
the advice of its Operational Services Committee, which is responsible for
adoption policy. I have asked Miss Murdoch for a report to be presented to the
next Operational Services Committee on 14 November and to the Governing Body on
3 December."
9. Not surprisingly, in view of the contents of that letter, the Claimant wrote
to its author, Mr Kennedy, pointing out that he did not appear to have
understood her case. She reiterated that her birth parents and adoptive parents
were dead and that there were no surviving close relatives to be considered.
She said:
"It is this specific point on which I am basing my request for a change in
policy re access to files, or if not a change in policy then an
amendment to the guidelines, which will allow the Society to exercise its
discretionary powers in cases, of which mine is a prime example, where certain
criteria are no longer pertinent, and where fixed guidelines therefore become
redundant."
10. The written submission to the Governors is to be found at p.253 of the
bundle of documents and it is unnecessary to repeat it here. It succinctly sets
out her case and refers to the NCS's discretionary power in Regulation 15(2)(a)
of the Adoption Agencies Regulations 1983 (as amended). It also refers, with
some feeling, to the obstacles she has encountered with the NCS.
11. The position of the NCS is made abundantly clear in a press statement of 8
July 1999 and a letter from Mr Kennedy to Mr David Sumberg M.E.P. dated 16
November 1999. Whilst assisting an adoptee as far as they are able, they
recognise the needs of all parties who have shared information with them on the
understanding that it would not be disclosed. Confidential information remains
confidential regardless of the passage of time or the death of the person
concerned.
12. The Board of Governors met on 3 December 1999 and the decision letter was
written on 8 December 1999. Before the Board met the Operational Services
Committee had met on 4 October 1999 and considered a report on access to birth
records by adopted people written by Miss Murdoch, a principal officer. It was
of course the Claimant's request for information that precipitated this action.
The report is short and is notable for its failure (i) to examine in any depth
whether the current policy of the NCS continues to be appropriate and if so why
and (ii) to look at all the particular circumstances of the Claimant's
application. The report notes:
"Some adoption agencies give full access to the adoptee and birth parent file.
As far as Miss Murdoch can ascertain no agencies give access to the adopters
file: this file contains confidential information supplied by the adoptive
parents and other third parties (i.e. referees and local authorities.)
B.A.A.F's legal section and the Department of Health have confirmed this to be
confidential information."
There was no analysis whatever of what was in the file. The report then went on
to conclude:
"With regards to the adopters file I would therefore recommend the
continuation of current policy of not disclosing information."
13. The report then went on to consider the position with regard to adoptee
and birth parent files pointing out that the Children Act 1975 gives adoptees
access only to their original birth certificate and not to the contents of the
file or their birth parents' file and that birth parents who placed their
children for adoption prior to the implementation of Section 26 of the Children
Act 1975 were not aware that the information they provided might in the future
help their birth child to trace them. The report then went on to outline what
information was not given and to record that the most recent inspector from the
Department of Health had said that their policies were "a little tighter then
most." It was the opinion of the team that confidential information given by
the birth parents should not be disclosed to adoptees. The recommendation was
that the current policy should stand.
14. The final recommendation was:
"In view of the reviewed policy I would not recommend it as appropriate for
this request to be granted. Ms Gunn-Russo has already had access to her own
file and has been supplied with information from her birth parents' file."
There was no analysis whatsoever of the facts of the Claimant's situation and
how any policy might be applied to her.
15. There is a brief minute of the meeting of the Operational Services
Committee on 14 October 1999 recording that the committee endorsed the current
policy on access to birth records. It is interesting that the minute records
that Mr Kennedy had asked Miss Murdoch to prepare the report seeking
affirmation of the stance that had been taken. The reader is not left with the
impression that there was any serious fresh look at the policy still less were
minds applied to the particular circumstances of the Claimant's case.
16. Catherine Shelton's evidence is that the report was before the Board of
Governors on 8 December together with the Claimant's letter. Presumably the
Board also had the minute of the Operational Services Committee meeting of 14
October 1999. The decision letter of 8 December begins by saying that the
governing body had had an opportunity of considering the policy of the
society in the light of the Claimant's comments and application. The second
paragraph goes on to make a point about the confidential nature of the
information and the practice of other adoption agencies. The governing body
therefore saw no reason to change the society's policy which it saw as
essential to protect the rights of adopters and third parties. It went on to
say that its policy was totally consistent with the law and essential to
protect the rights and interests of birth parents. The penultimate paragraph
reads:
"The Governing Body was made aware that you had traced your birth parents and
that you had been provided with all of the information from your file
consistent with the society's policy. The request that you be allowed access
outside of that policy and be allowed to remove from the society the adoption
file and all information about yourself, birth parents and adopters cannot
therefore be granted. The society will retain and maintain the adoption records
for a period of 75 years in accordance with legal requirements and continue to
offer you any help and support consistent with its policy."
The Law
17. At the heart of this case lies the NCS's discretion as an adoption agency
under Regulation 15 of the Adoption Agencies Regulations 1983. Regulation 15(2)
provides:
"Subject to paragraph (3), 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,
and
(b) to a person who is authorised in writing by the Secretary of State to
obtain information for the purposes of research."
Regulation 15(3) requires a written record to be kept by the adoption agency of
any access provided or disclosure made by virtue of this regulation.
18. There are also other legislative provisions and circulars that are of some
importance in the context of this case and I shall refer to them briefly.
19. Section 1 of the Adoption Act 1976 requires local authorities to establish
and maintain adoption services in their area. This can be done in one of two
ways, either by the local authority itself or by an approved voluntary adoption
agency such as the NCS.
20. Section 50 provides for the maintenance of an adopted children register
and Section 51 provides for the disclosure by the Registrar General of the
information necessary to obtain a birth certificate of an adopted person and
any prohibited degree of relationship of an intended spouse. Section 51A
provides for the maintenance of an adoption contact register, the purpose of
which is to facilitate contact between an adopted person and his natural
family.
21. Section 58A(1) requires every local authority and voluntary adoption agency
to transmit to the Secretary of State particulars as to their performance of
their functions under the Adoption Acts and as to the children and others in
relation to whom they have exercised those functions. Subsection (4) requires
the Secretary of State to publish abstracts of the particulars submitted.
22. The Adoption Agencies Regulations 1983 (the 1983 Regulations) are made
under Section 9(2) of 1976 Act. Regulations 7 and 8 spell out an adoption
agency's duties in respect of a child, his parents or guardian and prospective
adopter.
23. By Regulation 13A, the adoption agency has to provide the adopters with
such information about the child as they consider appropriate and advise the
adopters that this information should be made available to the child when they
consider it appropriate but no later than the child's 18th birthday.
This provision was introduced in 1987.
24. By Regulation 14, any information obtained or recommendations or decisions
made are to be treated by the adoption agency as confidential. This is subject
to regulation 15 to which I shall refer in more detail in a moment. Regulation
14(2) requires the case records to be kept for at least 75 years.
25. My attention was also drawn to the Adoption Rules 1984 which regulate
proceedings in the High Court and county court. The present case was not, of
course, concerned with court proceedings and therefore these rules have no
direct application. However Rules 5(8) and (6)(ll) expressly provide for the
confidentiality of reports to the court and Rule 53(4) requires the leave of
the court before any document or order may be copied or inspected.
26. The Local Authorities Social Services Act 1970 provides the Secretary of
State with wide powers of control and review over local social services
authorities. This affects all of the adoption services provided by local
authorities directly but not through voluntary adoption agencies. See in
particular Sections 7A to 7D.
27. Circular LAC (84)3 provides some comment in paragraphs 118 to 121 on
disclosure under Regulation 15(2). Paragraph 120 refers to the sort of external
circumstances which agencies may wish to provide for in their policy and which
procedural instructions might include. Among these are "giving an adopted
person background information about himself or the circumstances of his
adoption."
28. Local Authority Circular LAC(97)13, in particular paragraph 28, provides
guidance on the proper application of Regulation 13(A) of the 1983 Regulations.
Section 7 of the additional guidance refers to the contents of the case
records. Paragraph 58 is of particular significance. It says:
"The intention is to provide the adopted person with as much information as
possible about his social and personal history and the reason for the adoption.
Painful or unpleasant information should not necessarily be "glossed over." The
identification of such material may, indeed, prove to be the basis for future
post adoption support and service contingencies. Care must nevertheless be
taken to anonymise the material and exceptionally exclude confidential
information about third parties or information provided "in confidence and not
for wider dissemination." There follows a check list of most of the documents
which should be included in the case records. Among these are:
* record of social work with child about his adoption.
* adoption panel minutes and recommendations.
* summary of steps taken to find suitable adopters for the child and a copy of
the child's profile records used for this purpose.
* adoption panel minutes and recommendation in respect of matching the child
with prospective adopters.
* placement agreement with adopters.
* open letter from social worker describing how and why adoption plans became
the plan for the child.
Of course many of these and the other specified information may not have been
placed on file at the time of the Claimant's adoption. However the significance
is that such information is now placed on file routinely with a view to
disclosure to the child.
The outstanding information
29. The present position is that the following information remains outstanding
(i) a document from the birth parent file from Croydon Council relating to the
birth mother and (ii) documents from the adopter file relating to the Rogan
family. The Claimant has had complete access to the adoptee file and the NCS
have confirmed they have no photographs or further information relating to Mid
Russo. It appears that the Claimant may already have been shown everything (see
in particular the NCS's acknowledgment of service) and that what is being
refused is copies of the documents. If so the NCS are in breach of Regulation
15(3) in having kept no record of what they have shown the Claimant.
Furthermore, any confidentiality will have gone and it is difficult to see what
logical objection there can be to the Claimant now being provided with copies.
I think part of the difficulty is the NCS are not sure what the Claimant has
seen and she is not sure what there is to see.
The Practice of the NCS
30. In her evidence Catherine Shelton describes the policy and practice of the
NCS towards adoptees generally. She says that once the adoptee has obtained a
copy of his/her original birth certificate a further interview is arranged when
information may be shared from the adoption records. At this stage, every case
is considered individually and the information provided will take into account
the information the adopted person has or wishes to have and their reasons for
requesting the information. Any information would be in the form that it was
given to the Claimant (pages 201-203 in the bundle.) Unless there are
exceptional circumstances it is the information in the adoptee file that is
most routinely likely to be disclosed as this information relates specifically
to the adopted person herself and her early years. Limited information with
regard to the birth parents maybe disclosed if this will assist the adopted
person in tracing the birth parent or if the information has a direct bearing
on the adopted person, for example medical information. Any further information
from the birth parents' file is usually only disclosed if the agreement of the
birth parent is obtained.
31. Ms Shelton goes on to point out that no information is disclosed regarding
the adoptive parents and the adopted person is not given direct access to any
part of the adoption file. This file may contain information which has been
supplied by third parties. It will also have the records relating to the
evidence obtained during the assessment of the adoptive parents. Information,
she says, that is not relevant to the adopted person in terms of their
identity, especially as the adoptee will have been raised with his/her adopted
family.
32. She summarises the NCS's position as follows. It has always operated
within the best practice guidelines that exist and within the constraints of
the legislation. Procedure and attitudes have changed considerably in recent
years but, despite the changes, the rules and procedures in relation to
adoption retain the policy of confidentially regarding adoption agency records.
This is reflected in the Adoption Act 1976 and the Adoption Rules 1984 as well
as in the Adoption Agencies Regulations 1983 and the Government Guidance in
Circular LAC (84) 3. The NCS wishes to assist the adoptee as far as possible,
but there are other parties to the adoption process whose interests have to be
considered and many of these parties share information with the society on the
understanding it will not be disclosed. The nature of that information is
intensely personal and the NCS regard it as received in confidence. The
information remains confidential regardless of the passage of time or the death
of the person concerned. Children remaining in the care of their birth parents
would not be entitled to receive or have a right of access to similar
information about their own parents and similarly adoptees have no greater
right of access to such information about their birth parents or adopters.
33. The sort of information given by birth parents or adopters, she says, is
not considered to be information that a child would normally expect to inherit
from a parent. In the experience of the NCS an adopted person has not before
been given complete access to the adoption file, and in particular to the
adopters' and birth parents' file. There are others, including the Claimant,
who plainly takes a different view about the relevance of such information. I
do not think there is a precise comparison to be made with people brought up in
their birth family. An adopted person may well wish to know why he or she was
placed with a particular family and why that family was felt to be suitable.
However, Ms Shelton says, the Claimant has had more extensive disclosure than
other adoptees and this has in part reflected her particular circumstances and
the understanding she was shown in being given copies of documents relating to
her adoptive parents in the past. This disclosure was contrary to the NCS's
practice.
34. It is said that the NCS's policy is consistent with that of other agencies
who have similar policies in relation to the adopters' part of the file and do
not allow an adopted person direct access to it.
35. There is no question of the NCS providing the Claimant with original
documents for they have an obligation under Regulation 14(3) of the Adoption
Agencies Regulations 1983 to keep the case records in cases where an adoption
order is made, for at least 75 years.
36. Although the NCS's decision of which complaint is made was on 3 December
1999 they have provided some further information. An exchange of correspondence
between solicitors in early 2001 reveals that there has been significant
further disclosure since that decision. However, no explanation has been given
for the apparent departure from the December 1999 position. There remains
outstanding the information I have referred to above. It appears the
information on the adopter file i.e. relating to the Rogan family is being
refused on a global, as opposed to document by document, basis.
The Complaint
37. The fundamental point taken by the Claimant is that the NCS has adopted an
inflexible policy of refusing adoptees, such as the Claimant, access to the
adopter file irrespective of the circumstances of the case. Put shortly, it has
fettered its discretion. It is well settled that whilst a public body may
develop policies to assist in the making of consistent and principled decisions
under a general statutory discretion, it cannot turn those policies into
inflexible rules that would negate the discretion. Each case, therefore, must
be considered on its own facts and a departure from the general policy
considered. The relevant material requires to be considered and findings of
fact made upon it to justify upholding or not upholding the general policy on
the facts of the case. Lord Reid said in British Oxygen Co. Limited v Board
of Trade [1971] AC 610, 625D:
"The general rule is that anyone who has to exercise a statutory discretion
must not "shut his ears to an application"....... I do not think there is any
great difference between a policy and a rule. There may be cases where an
officer or authority ought to listen to a substantial argument reasonably
presented urging a change of policy. What the authority must not do is to
refuse to listen at all. But a Ministry or large authority may have had to deal
already with a multitude of similar applications and then they will almost
certainly have evolved a policy so precise that it could well be called a rule.
There can be no objection to that, provided the authority is always willing to
listen to anyone with something new to say - of course I do not mean to say
that there need be an oral hearing."
38. The NCS's submission in the present case is that it acted lawfully in
having a policy and that the adoption of this policy did not disable it from
exercising its discretion in the Claimant's case. Certainly, it was entitled to
have a policy, although I am bound to say I have some doubts whether in the
light of modern circumstances the policy leans too heavily against disclosure.
I shall return to this in due course. Of more immediate concern is the fact
that the policy was being rigidly applied without true consideration of the
facts of the Claimant's case. Mr De La Mare, for the Claimant, has outlined
what he calls the key features of her case. These are in summary:
i) She was adopted over half a century ago and the overwhelming likelihood is
that all those professionally involved are long since dead or retired. She
herself is now in her mid fifties.
ii) Both her parents and her adoptive parents are dead. There are no surviving
close family. Her natural father was an American Serviceman and returned to the
United States many years ago.
iii) There is no suggestion that any disclosure might be harmful to the
Claimant.
iv) The Claimant had a close relationship with her natural mother for about 11
years until she died and since her natural father's death she has made a
friendship with her half sister Joyce Russo. Her only surviving family are
through her natural father Mid Russo and it is clear from the NCS's evidence
that nothing in the undisclosed material relates to him.
v) The Claimant has never had the opportunity, now afforded to adopted
children, of a systematic life story book or the kind of structured carefully
considered information now provided to adopted children. Nor has she had the
carefully compiled adoptive file that one might currently expect. The evidence
of Catherine Shelton shows that the NCS's files are currently constructed in
accordance with Regulations 7 and 8 of the Adoption Agencies Regulations 1983
and circular LAC (97)13. They are divided into three parts, birth parents,
adopters, and adoptee. Back in the 1940's the files were not constituted in
this way but the material within the old files is still regarded as falling
into these three distinct parts.
vi) The Claimant recalls having been shown what she believes to be letters that
are now being withheld as part of the adopter file. To the best of her
recollection they do not contain any high confidences.
The Claimant's argument is that when these points are all taken into
consideration her case is demonstrably different from the ordinary run.
The NCS's Decision
39. I am satisfied, having read carefully the whole of the evidence, that the
NCS has not considered the particular circumstances of the Claimant's case
against its general policy. This was an unusual case largely because of the
long passage of time since the Claimant was adopted. None of the key players
except the Claimant is still alive. Furthermore, it must have been obvious to
the NCS that she was and is desperate to extract every morsel of information
about her past from their files. Disclosure means a very great deal to her. In
these circumstances the balancing exercise they had to conduct involved
weighing up these factors against the benefit of maintaining confidentiality.
40. It is clear from Ms Shelton's evidence that the NCS regard the confidence
with which information has been supplied to it as something that survives both
the death of the giver of the information and the passage of time. The tenor of
what she says is that the adopters' section of the file is withheld as a matter
of course as is other information from third parties. This, she says, is the
practice not only of the NCS but also of other agencies.
41. Confidentiality, it seems to me, is potentially relevant in two respects
(i) generally and (ii) in relation to the individuals in the instant case. The
NCS seem to have failed to appreciate this. What they should have done was to
go through the remaining documents on a document by document basis to see if
there was in each instance a compelling reason for the non disclosure of any
particular document. Then they should have looked at the position generally. As
to the general position, the NCS's argument appears to be that permitting
disclosure even where there is no risk of breaking an individual confidence is
impermissible because of the damage it would do to the adoption process
generally. Those who supply information in confidence would no longer be
prepared to do so if they felt that confidence might not be maintained. I am
unpersuaded about the force of this argument, particularly if it is made clear
when giving disclosure that none of those involved is either alive or has any
interest in maintaining non disclosure.
42. Nowhere is there any explanation of what weight if any was given to the
particular circumstance of the Claimant's case, especially the passage of time
since her adoption and the fact that all close members of her birth and
adoptive family were no longer alive. Nor is there any suggestion that the
documents remaining undisclosed, with the possible exception of the one
outstanding document from the birth mother's file, were considered other than
on a global basis.
43. When therefore one turns to the decision letter and finds no reference to
the critical findings in her application, namely death and the passage of time,
not only is the picture clear but the agency's attitude is consistent. They
have a policy they are convinced is right and they are not going to change it.
The maintenance of confidentiality trumps everything, regardless of the
circumstances. Only information accessed under its general policy is to be
allowed. I am driven to the conclusion therefore that the NCS's decision falls
foul of the principle enunciated by Lord Reid in the "British Oxygen" case. No
findings of fact, appear to have been made.
44. Not least of the Claimant's complaints is the absence of reasons for the
NCS decision other than that it is not their policy to disclose what is sought.
This makes it impossible for her to mount an informed challenge. Had the NCS
addressed the particular circumstances of her case she might have been able to
respond.
45. It is to be noted that whilst the report to the Operational Service
Committee records Regulation 15 as one of several legislative provisions
regulating the NCS as an adoption agency, neither that report nor the decision
letter adverts to the fact that the NCS was exercising a discretion given under
that regulation. There is therefore some doubt in mind whether the governing
body truly appreciated the statutory discretion they were required to exercise.
Confidentiality
46. The Adoption Act 1976, together with the related regulations and guidance,
emphasises the confidential nature of case records prepared in the course of an
adoption and of the adoption proceedings. The nature of the information
imparted by a birth parent and prospective adopter to an adoption agency is by
its nature confidential, having been imparted in circumstances importing an
obligation of confidence. It is the NCS's case that this confidentiality
continues forever notwithstanding the age of the adopted person, the passage of
time and whether or not the person giving the confidential information and
those affected by it are still alive. The Claimant submits that the death of
the party confiding the information neither necessarily leaves the confidence
unaltered nor automatically terminates it. The effect of death of the confider
depends on the circumstances.
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. This led
to Section 26 of the Children Act 1975 and the right of adopted people over the
age of eighteen to a copy of their original birth certificate. 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.
49. Regulation 15(2) is phrased in wide terms. It refers to access to the
agency's case records. Mr De La Mare points out that this expression is wider
than "birth records," the expression used in Section 51 of the Act.
Furthermore, nothing in the Act or Regulations limits the case records which
may be disclosed. All the records are, submits Mr De La Mare, held prima facie
subject to the obligation of confidence in Regulation 14, which of course is
subject to discretion to disclose in Regulation 15.
50. What is the strength or effect of the confidential obligation? Lord Widgery
C. J. said in Attorney General v Jonathan Cape Ltd [1976] 1QB752, 771 in
respect of public confidences that:
"There must, however, be a limit in time after which the confidential
character of the information, and the duty of the court to restrain publication
will lapse"
He added that:
"It may, of course, be intensely difficult in a particular case, to say at
what point the material loses its confidential character, on the ground that
publication will no longer undermine the doctrine of cabinet
responsibility."
51. As the authors Toulson and Phipps on Confidentiality (1996 edition) at p.63
point out, the principle that on information losing its confidential character
the duty of confidence ceases must apply equally in the case of private
confidences. In applying that principle due attention must be paid in each case
to the original purpose of the duty of confidence. In the case of a private
confidence, the duty exists to protect the personal, private and proprietary
interests of the citizen. See Commonwealth of Australia v John Fairfax and
Sons Ltd (1980) 147 CLR 39 at 51 per Mason J. The duration of such duty
will vary according to the nature of the information and the nature of the
relationship. Nor does the death of the confider necessarily bring the
confidentiality to an end, for example where a patient has confided
confidential information to a doctor and then dies. In the present case,
although the confidences are private in the sense that the information was
supplied by private individual there is, it seems to me, a public element in
that confidentiality is recognised by a number of provisions of the Adoption
Act and Regulations. There is a public interest in maintaining confidentiality
that goes beyond the interests of the individual supplier of the information.
Put shortly, if adoption is to work satisfactorily, confidentiality must be
available.
52. In my judgment the correct approach is that taken by Scott J in the
Spycatcher Case [1990] 1 AC109 at 147-8. The ambit of the duty of
confidence depends on the nature of the obligation and the interest which it is
intended to protect. The interests to be protected in the present case are both
those of the imparters of the information and the public. I agree with the
statement in Toulson and Phipps at p.56 that in principle a duty of
confidentiality should cease if the information loses the quality of
confidence, whether through the passage of time, loss of secrecy or other
change of circumstances.
53. The present case is not, however, 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 the NCS's discretion in Regulation 15(2). There
is, I think, no difficulty in concluding that in disclosing the information the
NCS would be doing so for the purposes of carrying out its functions as an
Adoption Agency. Were that not so it could not have supplied any information to
the Claimant. The position reached is therefore that the NCS have a discretion
that is unrestricted (other than by Regulation 15(3) which is irrelevant for
present purposes) that falls to be exercised against the background of the
current adoption legislation and the law on confidentiality. 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. The Court
was faced with different, but not entirely dissimilar, circumstances in D v
NSPCC [1978] A.C.171. Lord Edmund-Davies said at p.245 that where (i) a
confidential relationship exists (other than that of lawyer and client)
and (ii) disclosure would be in breach of some ethical or social value
involving the public interest, the Court has a discretion to uphold a refusal
to disclose relevant evidence provided it considers that, on balance, the
public interest would be better served by excluding such evidence.
55. In my judgment the NCS 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 thirty years.
Article 8 of the E.C.H.R
56. Article 8 of the European Convention on Human Rights is relied upon by the
Claimant both against the NCS and the Secretary of State. Against the NCS it is
said to be an important factor in the exercise of discretion under Regulation
15. I have come to the conclusion, however that in the circumstances it adds
nothing to English common law in this regard. Regulation 15 already fully
contemplates the interest of the Claimant in knowing and understanding her
early life. Put slightly differently, the disputed documents are not ones to
which any greater rights of access are conferred by Article 8 than exist in
domestic law.
57. The NCS accepts that in exercising its functions under the Adoption Act
1976 and the relevant regulations it is exercising a public law function and
that it is a public authority for the purposes of judicial review and Section 6
of the Human Rights Act 1998. Article 8(1) of the Convention provides that:
"Everyone has the right to respect for his private and family life, his home
and his correspondence."
58. Mr de la Mare argues that because adoption records play an important role
in the development of the adopted person's personal identity, the records
necessarily relate to that person's private and family life under Article 8. He
relies on Gaskin v United Kindom (1989) 12 EHRR 36 as support for the
proposition that the Claimant has a vital interest, protected by the
Convention, in receiving information to know and understand her early
development. The Court in that case however said at paragraph 49:
"On the other hand, it must be borne in mind that confidentiality of public
records is of importance for receiving objective and reliable information, and
that such confidentiality can also be necessary for the protection of third
persons. Under the latter aspect, a system like the British one which makes
access to records dependent on the consent of the contributor, can in principle
be considered to be compatible with the obligations under Article 8. Taking
into account the state's margin of appreciation. The court considers, however,
that under such a system the interests of the individual seeking access to
records relating this private and family life must be secured when a
contributor of the records either is not available or improperly refuses
consent. Such a system is only in conformity with the principle of
proportionality if it provides that an independent authority finally decides
whether access has to be granted in cases where a contributor fails to answer
or witholds consent."
59. This passage provides the cornerstone for Mr De La Mare's argument that
Article 8 creates a positive obligation on the State to provide some
independent authority or appeal process where a voluntary adoption agency
declines to release records. Absent such a right of review he submits there is
a breach of Article 8.
60. Article 8 includes adoptive parent/child relationships. See X v Belgium
and Netherlands (1975) DR 75. There is no doubt that the relationship that
existed between the Claimant and her adoptive parents amounted to family life.
However, I find it difficult to see that respect for her private and family
life per se entitles the Claimant to access to documents created before and
shortly after the time she was adopted, many of which will have emanated from
third parties such as the social services. It is not, in my judgment, part of
family life for members of the family to be entitled to access to information
given by a parent to a third party or vice-versa. The present case is clearly
distinguishable from Gaskin where the material sought was about the
applicant. Here the information was provided by a third party and is about a
third party. In Gaskin the applicant was in the care of Liverpool City
Council during his minority, mostly boarded out with various foster parents. He
claimed he was ill treated whilst in care. The local authority was under a duty
to keep certain confidential records concerning him and his care. Since
majority he had tried to obtain details of the information in these records.
Eventually the council resolved that the information on his file should be made
available to him subject to the consent of the contributors to the file. Some
refused consent and he claimed that the refusal of access to all his records
was a breach of his right to respect for his private and family life. The ECHR
agreed by 11 votes to 6. Since the information compiled and maintained by the
local authority related to the applicant's basic identity, and indeed provided
the only coherent records of his childhood formative years, the court found the
refusal to allow him access to the file to be an interference with his right to
respect for his private life falling to be justified under Article 8(2). The
file provided a substitute record for the memories and experience of the child
who is not in care. The court expressly did not decide (see p.37 of the
judgment) whether general rights of access to personal data and information
could be derived from Article 8(1). In my judgment the decision in
Gaskin was very much dependant upon the facts of that case.
The case against the Secretary of State.
61. The Secretary of State's decision of 30 August 2000, which was maintained
after the Human Rights Act 1998 came into force, refusing to compel the NCS to
disclose the records was based on the belief that he had no power to do so
under domestic legislation. The Claimant challenges this and also the further
contention that, absent any right of appeal against the NCS's decision, the
Secretary of State is in breach of a positive obligation arising from Article 8
of the European Convention on Human Rights to provide such right of appeal to
an "independent authority." The Claimant's contention is that no voluntary
adoption agency is capable of being the independent authority referred to in
paragraph 49 of Gaskin.
62. The argument is that the NCS lacks such independence because contributors
to the adoption records are likely to consist of birth parents, adopters and
adoptees, professionals who are likely to be either employees or agents of the
agency and third parties such as local authorities, referees etc. Also,
voluntary adoption agencies are heavily involved in the adoption process and
form close links with both birth parents and adopters as well as, potentially,
adoptees. Therefore it follows that the NCS's employees are either the
contributors themselves or are so intimately involved with such contributors as
to be lacking either actual independence or the appearance of independence. I
find this argument, as a matter of generality, difficult to accept. Should
there be a particular case in which the discretion under Regulation 15(2) is
exercised unlawfully, it seems to me that judicial review provides an adequate
remedy.
63. The Claimant's submission's can be summarised thus:
i) The Secretary of State has failed, and continues to fail, to fulfil a
positive obligation under Articles 8 and 14 of the Convention to make available
an appeal procedure against the decision of bodies such as the NCS.
ii) Section 58A of the Adoption Act 1976 can and must be read in such a way as
to cure that apparent incompatibility with the Convention.
64. In the first place there is no express provision in the Convention to make
available an appeal process against the decisions of bodies such as the NCS
refusing to disclose certain documents to an adopted person. If such a right
exists it has to be implied. It is necessary to start by looking at the scope
of Article 8 itself. It is not only the Claimant that has the right to respect
for her family life; others do too. Of particular relevance here is the
adoptive family. Much of the outstanding information appears to relate to the
adoptive family and what the Claimant is in effect seeking is information of a
private nature that relates in part at least to others. As Mr Rabinder Singh,
for the Secretary of State, pointed out the mere fact that a person is a member
of your family does not mean you have the right of access to private
information about him, for example medical information.
65. Mr de la Mare's case that the NCS cannot in law have the last word and that
there must be access to some independent authority is constructed entirely upon
what was said in paragraph 49 in Gaskin. But in my judgment the present
case is very far from on all fours with Gaskin. In Gaskin the
applicant was denied disclosure of certain documents because the contributors
of information had, in effect, a right of veto over them. In the present case
much information has already been disclosed but what remains undisclosed
appears to contain private information relating to others. The positive
obligation on the part of the State that was held to exist in Gaskin was
the provision of a procedure whereby the refusal or failure of a contributor to
consent could be overridden if necessary. No such procedure is necessary in the
present case because Parliament has given adoption agencies such as the NCS a
discretion under Regulation 15(2) of the 1983 Regulations whereby they hold the
ring between the competing interests of the suppliers of confidential
information on the one hand and adoptees who are keen to discover the full
story of their past on the other. Mr Singh validly makes the point that the
reception into English law of convention rights through the Human Rights Act
1998 was not designed to lead to a radical restructuring of our legal or
administrative system. After all, this country has been a signatory to the
Convention for the best part of 50 years. As Mr Singh aptly put it, the purpose
of the Act is to absorb the principles of the Convention into the fabric of our
legal system rather than to be an alien adjunct to it. The scheme of the Human
Rights Act is whenever possible to give effect to convention rights through our
existing law. So it is that Section 3 of the Human Rights Act 1998 provides
that so far as possible primary and subordinate legislation must be read and
given effect to in a way which is compatible with convention rights. The duty
to protect convention rights rests on all public authorities under Section 6,
and this of course includes the courts. Insofar as there is any positive
obligation on the State to protect Article 8 rights, that duty rests as much on
the courts as it does on any other public authority. In my judgment should
access to an independent authority be required to discharge a positive
obligation under Article 8 then the Administrative Court is well able to
discharge it in the exercise of its supervisory role.
66. Mr de la Mare invoked by analogy Article 6 of the Convention in support of
his client's alleged right to have the NCS's decision reviewed by an
independent authority, arguing that this means a body independent of the
parties or, in the context of Gaskin, independent of the contributors.
However, Bryan v United Kingdom (1995) 21 EHRR 342 at paragraph 40 at
seq makes it clear that even where a decision-maker is not wholly independent,
the right of access to the Court by way of judicial review (or similar appeal
process) is sufficient to satisfy Article 6. This view was fortified recently
by the House of Lords in R (Alconbury Developments Ltd) v Secretary of State
for the Environment Transport and the Regions [2001] 2 WLR 1389. No wider
principle flows, in my judgment, from Article 8, which gives rise at best to an
implied positive obligation and not an express one.
67. Finally, my attention was drawn to the Data Protection Act 1998 which
provides for access to the court including appraisal of confidentiality issues.
Mr De La Mare submits that but for a recent amendment order this route would
have been available to the Claimant. This, he says, emphasises the need to
provide some form of independent review. Mr Singh's response is that even
before the amendment or order the Claimant had no right under the Data
Protection Act to information relating to others.
Section 58A of the Adoption Act 1976
68. Because the Claimant's argument that the Secretary of State is obliged to
provide an appeal procedure from bodies such as the NCS fails, there is no need
to resort to Section 3(1) of the Human Rights Act 1998 to see if some
construction of Section 58A(1) of the Adoption Act 1976 can be found to secure
compatibility with the ECHR. Nevertheless, I pause to consider what is the true
construction of Section 58A(1).
69. There is abundant evidence to establish that Section 58A(1) has hitherto
been regarded as an information gathering tool for statistical purposes and no
more. Although it does not appear thus far to have been the subject of judicial
interpretation, that in my judgment is its natural and obvious meaning. The
Claimant's argument, however, is that a wider meaning is possible without any
distortion of its language and that such wider meaning would satisfy Section 3
(1) of the Human Rights Act 1998 and indeed is necessary to do so. The
Claimant's argument runs thus. Nothing in the wording of the section expressly
or by implication limits its scope to the provision of statistical information.
The width of the key expressions "particulars", "in such form as he may
direct", "with respect to........performance of all or any of their functions"
and "with respect to the children and other persons in relation to whom they
have exercised those functions" is self evident. Secondly, there is some
linkage between the wording of Section 58A(1) and that of Regulation 15(2). The
general references to functions in Section 58A(1) echo the words Regulation
15(2) which permits disclosure by a voluntary adoption agency "for the purposes
of carrying out its functions". Thirdly, the linkage is further confirmed by
Regulation 15(1)(b) which confirms that information falling within the adoption
records can be disclosed to the Secretary of State by the voluntary adoption
agency in question. This is not simple access for statistical purposes but
access to its case records and the indexes to them as well as "such information
in its possession."
70. This, submits Mr De La Mare, leads to the conclusion that Section 58A(1)
gives the Secretary of State a power to compel the provision of records (and
not just statistics with a view to reviewing a voluntary adoption agency's
refusal to disclose). He submits that this is a possible interpretation in
order to comply with the Convention rather than a reasonable interpretation. It
is, he submits, a purposive interpretation that is sometimes necessary in order
to discharge the duty imposed by Section 3 of the Human Rights Act. Such an
interpretation would, he points out, put the adoptee in a comparable position
to one whose records are held by a local authority rather than a voluntary
adoption agency (see Sections 7 to 7D of the Local Authorities Social Services
Act 1970). Absent such a construction, he submits, voluntary adoption agency
adoptees are at a disadvantage as against local authority adoptees and there is
therefore a breach of Article 14.
71. I have reached a clear conclusion that the meaning of Section 58A(1) is no
wider than it has always been understood to be. The section is there for
statistical purposes and no more. Even were I constrained to do my best to
construe it so as to enable the Secretary of State to review the agency's
decision I could not reach the conclusion advocated by Mr De La Mare. A
purposive approach is one thing but it cannot be stretched so far as to give
the words a meaning that they were plainly not intended by Parliament to
have.
72. What in my judgment the Claimant is in reality complaining about is not so
much a failure to act by the Secretary of State as a failure by Parliament to
enact primary legislation or a failure by the Secretary of State to propose
legislation to Parliament. This is expressly excluded from acts and omissions
that are made unlawful by the Human Rights Act 1998 (see Section 6(6)).
73. In the course of his submissions Mr De La Mare argued that the Secretary of
State had power to make relevant regulations under Section 9(2) of the Adoption
Act 1976. But that only relates to the exercise of "its" functions by an
approved adoption society. It provides no basis for giving the Secretary of
State power to act as an appellate authority.
Conclusion
74. My conclusion therefore with regard to the NCS is as follows:
i) The NCS have a wide discretion under Regulation 15(2) of the 1983
Regulations to disclose material on the adoption file.
ii) This discretion must be exercised against the background of the adoption
legislation and in the context of the particular circumstances of the case.
iii) The NCS should look again at their general policy and consider whether it
operates too rigidly against disclosure in the light of present day
circumstances.
iv) Whatever the appropriateness of their policy the NCS applied it too rigidly
to the Claimant's application and without giving proper consideration to the
specific circumstances of her case in particular the passage of time since her
adoption and the death of those individuals who might have wished to maintain
confidentiality. Had they considered her request properly they would have gone
through the file on a document by a document basis and asked themselves whether
there was any longer any compelling reason for maintaining the confidentiality
of each document. They should have conducted the balancing exercise between the
arguments in favour of disclosure on the one hand and the arguments in favour
of maintaining confidentiality on the other.
v) The Human Rights Act 1998 incorporating into English law the European
Convention on Human Rights adds nothing to the English common law in the
circumstances of this case.
vi) The NCS have not lawfully exercised the discretion given to them under
Regulation 15(2) of the 1983 Regulations. They should reconsider the Claimant's
application for those records that remain undisclosed and they should do so in
the light of the contents of this judgment.
The Case against the Secretary of State
75. My conclusion with regard to the case against the Secretary of State is as
follows.
i) There is no right of appeal against a voluntary adoption agency's decision
under Regulation 15(2) of the Adoption Agency's 1983. The only remedy is
judicial review.
ii) The Secretary of state has no duty to make available an appeal procedure
against such decisions. Nor has he any power to compel such an agency to
disclose adoption records to an adopted person.
iii) Section 58A(1) of the Adoption Act 1976 cannot be read so as to give power
to the Secretary of State or any one else to substitute his decision whether a
document should be disclosed to an adopted person for that of the voluntary
adoption agency.
iv) So far as a disclosure of adoption records by a voluntary adoption agency
is concerned there is no incompatibility between domestic legislation and the
European Convention on Human Rights.
76. In these circumstance the claim for judicial review against the decision of
the Nugent Care Society succeeds. They should reconsider both their policy with
regard to the disclosure of records to adopted persons generally and its
application to the Claimant. The claim for judicial review against the
Secretary of State fails.
© 2001 Crown Copyright
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