Current position

Part of Adoption and Children Bill – in a Public Bill Committee at on 20 November 2001.

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3. Regulations1 provide that adoption agencies may disclose information in its possession, as it thinks fit for the purposes of carrying out its functions as an adoption agency. This enables for example adoption agencies to disclose information to:

—an adopted person about his background, although the guidance advises that this would not include the information recorded on the birth certificate as disclosure of this is provided for separately in the Adoption Act 1976;

—and to birth parents, information about the adopted child's progress. The guidance indicates that the child's new identity and whereabouts should not be disclosed.

4. The regulations thus give a wide discretion to adoption agencies and there are variations in practice. In many cases this works well. In some cases agencies have passed on sensitive identifying information without consulting the person who would be identified.

5. Section 51 in the Adoption Act 1976 provides that an adopted person aged 18 or over could obtain on request the information necessary for him to obtain a certified copy of his birth certificate from the Registrar General, which identifies the birth parents. In 1975, Parliament, in recognition that there was less stigma associated with adoption and of the need for more openness, decided to remove the guarantee of complete confidentiality given to birth parents who had previously placed their children for adoption. Until then, adopted persons were not statutorily able to find out information about their parents.

6. Section 51 has worked well in the vast majority of cases. However, since the 1976 Act there have been concerns about a small number of cases where there could be a risk to birth parents if they were traced through the birth records. In 1991, a court case2 was brought against the Registrar General's refusal to disclose the necessary information for a certified copy of a birth certificate to be obtained by a man with a personality disorder who had been adopted and was thought to be a danger to the woman who would be revealed as his natural mother.

7. The case went on to the Court of Appeal which decided that although the Registrar General has a duty to provide the information necessary for a person to obtain a birth certificate, he should not comply if to do so would:

—enable a person to benefit from a serious crime committed by him or to benefit from a serious crime he intended to commit

—or if circumstances were such that there was a current and justified apprehension of a significant risk that he might in the future use the information to commit a serious crime.

8. However, the Registrar General often does not have sufficient information about the adopted person or his birth family and so is not well placed in trying to reach a decision to withhold birth records where there is the possibility of a serious crime being committed. Nor are birth relatives able to take legal action to prevent the Registrar General from releasing identifying information unless they become aware that the adopted person is trying to trace them. Some birth relatives have experienced distress at having their identifying details passed on to the adopted person and they have complained that they were not asked for their consent.

9. Regulations3 currently provide that as soon as practicable after an adoption order is made, the adoption agency must provide the adopters with such information about the child as the agency considers is appropriate. The type and form of the information disclosed under this provision is not specified.

10. Guidance advises that agencies should be able to pass on to the adoptive parent much of the material held on the child's case record, while seeking to respect the confidential basis on which information may have been supplied. The adopters must be advised when they receive this information that it should be passed to the child when the adopters consider it is the right time to do so but in any event not later than the child's eighteenth birthday.