New provisions on the disclosure of information
Adoption and Children Bill
14. The Government has put forward proposals in the new version of the Bill that seek to create a new system for access to information. It would provide a single point of access to identifying information4 through adoption agencies and would apply to adoptions made after the Bill is implemented. As many of these provisions are new the Government would like to hear views on whether they strike the right balance.
15. The provisions are based on the following objectives:
—to ensure consistency of access to information for adopted people about the background to their adoption, a commitment made in the White Paper
—to give every individual involved in a person's adoption a right to express their wishes about the sensitive information that identifies them
—to give adoption agencies the discretion in exceptional circumstances to determine whether to override a decision to withhold or disclose identifying information
—and to balance the agency's exercise of discretion by providing a right for an independent review of the adoption agency's determination.
16. The intention is for the system to work generally as follows:
a) to deliver on the White Paper commitment, there should be standard package of information about a person's adoption and his background5 which is held by the adoption agency which:
i) provides information about others, such as birth parents and siblings, but does not identify them6
ii) is disclosed7 to the adopters as soon as possible after the adoption order
iii) is available8 as a right to the adopted person when he reaches the age of 18
b) that the adopted adult will be able to ask for identifying information about anyone involved in their adoption and to have it disclosed9 to them by the adoption agency provided:10
i) the birth parents11 have not objected to the disclosure of information that would identify them. This would include whether they have a specific objection to the disclosure of the information on the birth certificate. It is envisaged that in majority of cases the birth parents will be willing for the birth certificate to be made available through the adopted person's adoption agency12. The adopted person will have information about their date and place of birth, whether there is an objection or not.
ii) or consent has been granted by anyone else who would be identified
c) that the birth parents and others will be able to ask for identifying information about anyone involved in the adoption and to have it disclosed13 to them by the adoption agency provided14 consent has been granted by the person who would be identified.
d) in exceptional circumstances, the adoption agency would be required15 through regulations and under guidance to exercise a discretion in determining whether to disclose or to withhold identifying information. Examples include where one of the birth parents objects to the release of identifying information but the other does not. Another might be where an adopted person has asked for identifying information, the birth relative has objected but the interests of the adopted person's health and welfare are such that he should have the identifying information.
e) where the adoption agency reaches a determination to disclose or withhold identifying information contrary to the expressed view of the relevant party, it is to be subject to a review by an independent panel which would be constituted under the power provided by clause 12 in the Bill. For example, an adopted person would have a right to ask for a review of a determination by the adoption agency to withhold the information.
17. Many adoptions are now made on an open basis. Open adoptions are adoptions where it is seen to be beneficial for the child for the exchange of information and or contact to take place between the birth and adoptive families. Often the child knows from an early stage that he or she has been adopted; the adoptive parents and the adopted person have identifying information about the birth parents; and the birth parents have identifying information about the adoptive family and the adopted child.
18. The measures in the Bill that provide for the safeguarding of identifying information are intended to provide for the minority of adoptions where the sharing of such information is not seen to be appropriate in the circumstances and to ensure that where sensitive information is shared the views and interests of all parties are considered. To ensure that arrangements for open adoptions are clear and that they are not hindered where there is agreement clause 54(6) provides for the disclosure of protected information and section 76 information where an agreement is reached that includes the adoption agency. The intention is to provide for means to underpin an agreement between the adoption agency, the adoptive parents and the birth parents for the sharing of identifying information where the agency considers that an open adoption agreement would benefit the child's welfare and best interests.
Notes:
1 Adoption Agencies Regulations 1983, regulation 15
2 R. V. Registrar General, ex p. Smith, [1991] 2 All E. R. 88
3 Adoption Agencies Regulations 1983, regulations 12 & 13A
4 Clause 54(3). Identifying information is defined as information where a person is named or otherwise identified, and information from which someone can be identified from that information if it is put together with other information that the agency releases.
5 Clause 55(4). Background information will include information such as the child's birth details, medical history, interests, any special needs and progress. Such information will assist the adopters in the care and upbringing of the child.
6 Clause 57(1)(b).
7 Clause 57.
8 Clause 58 (2).
9 Clause 58(5)
10 Clause 58(6)
11 Clause 61(3). Birth parents will be informed at the time of the adoption order of their right to object until such time as the adopted person applies for their identifying information.
12 The Registrar General will retain his duty to maintain the birth records of the adopted person. He will also retain his duty to maintain the Adopted Children Register and the Adoption Contact Register. Under clauses 58(5), 59(2) and 76(3) access to the birth records of the adopted person will be provided through the adoption agency, as the agency is best placed to undertake this sensitive task.
13 Clause 59(2).
14 Clause 59(3).
15 Clause 61(1)(a)
Mark Ferrero, Branch Head, Adoption and Permanance, Cathy Morgan, Section Head, Adoption and Permanence, James Paton, Bill Principal, Adoption and Children Bill, Directorate of Children, Older People and Social Care Services, and Sandra Walker, Assistant Director, Solicitor's Office Division C, Health and Personal Social Services, Department of Health; Amanda Finlay, Director of Public and Private Rights, Lord Chancellor's Department; and Kieron Mahoney, Office for National Statistics, called in and examined.