Access to Information (clauses 53 to 62)

Adoption and Children Bill – in a Public Bill Committee at on 21 November 2001.

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1. As the Department of Health Memorandum states these provisions are new, they ask if they strike the right balance. Without doubt these provisions are new, they have taken the whole adoption world, both consumers professionals by surprise and equally without doubt they do not have the right balance. More fundamental is the fact they are not the right provisions and are not designed to meet the lifelong needs of the people living with the impact of adoption.

2. We note that the introduction to the Department of Health memorandum of evidence `Key Changes' notes at point 3 that ``several of these changes have been made in response to evidence submitted to the Select Committee''. We have studied the evidence presented to the Select Committee and are unable to find any submissions that called for clauses on the lines of those now included as 53 to 62.

3. We did note however that of the 129 submissions made 104 were from birth relatives or organisations representing large numbers of birth relatives. They asked for changes to the information clauses. They did not ask for changes in the manner currently before you. In particular they asked for retrospective changes to address the needs of birth relatives of adopted adults. These pleas were made not only by birth relatives and organisation representing them but also by adopted people and adoptive families and their organisations as well. BAAF and other national organisations also addressed this point in their evidence. We are therefore utterly incredulous by the manner in which changes have been made and appalled by what is placed before you purporting to be an appropriate response for at least the next 30 years to the information needs of people affected by adoption.

4. Since the March 2001 Bill was published the High Court has granted an order under section 50.5 of the 1976 Adoption Act. This enabled NORCAP to reunite 69-year-old triplets who had been separately adopted following the death of their mother on the day after their birth. This was widely reported by the BBC and in the national press. The BBC News reporter wound up her report with the words ``if you want to know what happiness looks like just look at the faces of these three today''. The BBC main evening news is not given to excess sentimentality. The High Court Judge who made the order, His Honour Mr Justice Sumner, said in his judgement,

``There is an urgent need to review the legislation that impedes birth relatives' opportunities for search and reunion''.

5. We hoped that the weight of argument presented in evidence to the Select Committee, together with the call of a High Court Judge and the public acclaim that surrounded the triplet reunion would have convinced the Department of Health of the need to positively address the needs of adults affected by adoption. We anticipated appropriate clauses being proposed which would be subject to retrospective implementation. In our earlier evidence we offered a choice of acceptable models. We would ask you to look again at our proposals contained in appendix 1 and select one for implementation. Each proposal offered the essential protection for individuals who would not wish to be contacted whilst offering opportunities to all parties to establish whether or not contact or communication would be welcome. We have not been shown any reason why our proposals were ignored. The Department of Health has proposed nothing constructive for people already affected by adoption although this is the largest group ever likely to need such services. Indeed claims made in the memorandum and the explanatory notes about the Bill are inaccurate.

6. Note 141 of the Explanatory Notes states that ``Previous arrangements for access to information will continue to apply to those adopted prior to the implementation of the Bill''. This is incorrect. In the new Bill section 76 replaces section 50 of the existing Act. What is currently section 50.5 does not feature in the new section. This means that the existing opportunity, used in particular by birth relatives and also by close relatives of a deceased adopted person, is being withdrawn.

7. There will be no opportunity to apply to the High Court for an order to be made to require the Registrar General to disclose the link between a birth entry in his registers and the corresponding adoption entry. If this Bill had been in force in the spring it would have been impossible to reunite the aged triplets. Is this really the will of Parliament? Is this an appropriate response by the government to the comments of a High Court Judge? Is it really intended that the effect of the review should be that no one would have the opportunity to explain his or her case, however exceptional, before a judge again?

8. A further inaccuracy in the Department of Health's material is the penultimate sentence of paragraph 5 of their Annex A. This claims that until 1975 birth parents had a guarantee of complete confidentiality. This is wrong. Birth parents have never had a right of confidentiality, their identity and the birth identity of their child appeared on the form completed by adoptive parents when they make their application to court for an adoption order. The Houghton Committee considered whether there should be the opportunity for a birth parent to keep his/her identity confidential by the use of a serial number such had been afforded to adoptive parents since 1950. They concluded it would not be appropriate to do so. They later recommended the provision of access to birth records for adopted adults in the light of John Triselliotis's research `In Search of Origins'. There are two other myths that surround adoption. Both need to be dispelled.

9. First is that adopted adults were unable to find their birth parents until 1976. Only those adopted adults whose adoptive parents did not share information needed to use the statutory access to birth records provisions. However many, probably a majority of, adopted people learned their original birth details from their adopters or from sight of their adoption papers. How else would Phillip Whitehead MEP—then MP—have been able to so move the House of Commons with his personal account of seeking, locating and reuniting with his birth mother during the debate on this legislation?

10. The second myth is that adoption, until recent years, was always a very secretive, closed and confidential process. From 1926 until the post war amendment of adoption law the identity of all involved was disclosed in the court process. No one could hide behind serial numbers yet there are no reported incidents of intrusion or other difficulties. This is because the various parties had a name, were recognised as individuals and each gave the other and the adoption order the respect that was required. It is most unfortunate that the Department of Health has now given the status of fact to myths that in part sustained poor practice.

11. It is also inappropriate for the Department to justify its desire to withhold information from adopted people by reference to R v Registrar General, ex p. Smith (1991). This case caused great concern amongst professional and user groups alike. Representations were made to the Department of Health and the officers then in post told us all that the case was exceptional, the circumstances of Mr Smith and his unfortunate family had not occurred in the previous fifteen years and were not envisaged likely to occur again.

12. The officials reassured us the neither the Department nor the Registrar General had any desire to restrict the automatic right of adopted people to access birth records. The introduction of this case at this point to justify a major infringement of a basic right appears dishonourable. If it was so significant why was it not addressed in earlier proposals? There have been four previous opportunities, the White Paper of the previous administration, the 1996 Draft Bill, Adoption a Service for Children, the White Paper of December 2000 as well as the March 2001 Bill. None included statutory restriction of Access to Birth Records.

13. In paragraph 8 of Department of Health Annex A the claim is made that ``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.'' NORCAP considers it inappropriate for the Department to make this claim without quantifying the numbers involved. `Some' could equal just two individuals. These claims are not in line with our experience. It would also be useful to know the pattern of complaints. Have they diminished as the years have elapsed since access to birth records was introduced? Why does the Department not quote any research that supports their intentions? Perhaps it is because there is no credible to research to support such a stance. It is also noticeable that the Department fails to make use of the research data that is to hand which makes a very strong case for wider and retrospective access to information and services.

14. The primary difficulty appears to concern information that identifies one person, but is of relevance to another person. Should this be withheld unless the person who would be identified consents to release? When the time that has elapsed from when the information was collected to when it is requested may be ten, twenty or indeed fifty plus years it is impossible to contemplate the time and resources which would be necessary to deal positively with requests. In practice the consequence would be that requests would not be dealt with. Nevertheless it is unacceptable to hide behind an excuse that the lack of consent is justification for the withholding.

15. The only viable option is to make it known that information will be released to the other people involved in the adoption unless the person who would be identified requires that it is not released. The onus must be on the person who would want the information withheld to take action, otherwise the person wanting the information may be disadvantaged even though the person who would be identified may have no objection to its release but no specific motivation to come forward and offer consent. Indeed the person who would be identified may even be deceased and would not be hurt by any disclosure. Our appendix 1 includes operational details for introducing such a procedure.

16. The question that must then be resolved is whether certain pieces of information are potentially so important to one individual that no other individual should be able to deprive them of the information. In our view two pieces of information are worthy of this exemption. The first is that every individual should have the right to know the identity of his/her birth mother. Where the information is recorded this should extend also to the identity of the putative birth father. We do not consider the birth parent has the right to demand that this information is withheld. We do recognise that the prospect of the information being disclosed and the adopted person using the information to locate and contact the birth parent may be distressing to a tiny minority of individuals.

17. We would address the concerns of this group by proposing that instead of requiring the information to be withheld the birth parent could require that it was only disclosed after the adopted person had signed a formal undertaking not to make contact with the birth parent identified. This undertaking should be signed in the context of a supportive discussion with an appropriately qualified person. Such systems work very well in many parts of the English speaking world. In brief instead of vetoing the release of information an anxious birth parent vetoes the possibility of contact. Whilst we anticipate very few requests to use this facility we accept it may be of benefit to a few individuals whose minority rights should be respected. This is a far better option than any opt in system that just serves to disadvantage the majority equally.

18. The second piece of information which we consider should be exempt from any withholding provisions is the right of a birth parent to be advised if a son or daughter who was adopted has died. There should be statutory duties placed upon agencies to actively seek to pass on such information for a minimum period of at least 25 years. There should also be a duty on an adoptive parent to advise the adoption agency if an adopted child dies.

19. It should be a matter of routine for a District Registrar taking notification of a death to ask if the person who has died was an adopted person. The District Registrar should then notify the Registrar General of any positive response and the Registrar General should use information in his registers (clause 76) to record the information on the Adoption Contact Register. Birth relatives should be advised that if they choose to use the adoption contact register they might learn that the adopted person has died. We consider the right to know whether your child is alive or dead is too significant to be withheld.

20. The Department of Health Annex A paragraph 15 refers to the White Paper commitment to provide adopted people with consistency of access to information. NORCAP would welcome consistency set at the high standards currently being achieved in some agencies. We fear that consistency may be achieved at a level of minimal information based upon defensive practice. This is not in the best interests of adopted people. Clearly we are being asked to accept that the Department will back up the primary legislation with appropriate secondary legislation. Based upon our experience in the past year NORCAP cannot accept this as there is no indication that the Department of Health actually understands the nature of the concerns of adults affected by adoption let alone is committed to meeting those concerns.

21. We do not think there is any need to have a specific provision for an adoption agency to withhold essential information that would otherwise be disclosed because it has concerns about one or more of the individuals involved. It is quite sufficient for an adoption agency to be able to make an application to the High Court for an individual determination as in the case of Mr Smith. In this way any disadvantage suffered through information being exceptionally withheld is subject to appropriate judicial scrutiny. The use of the Independent Panel which reconsiders agency determinations may be the appropriate forum for consideration of an appeal against any withholding of information other than that deemed as `essential' information. (Department of Health paragraph 16 Annex A)

22. In addition to our views on the sharing of information and the new services needed to support this NORCAP wishes to draw the attention of the Standing Committee to the following points.

—Whilst the extended duty upon local authorities to assess the needs of a person or family affected by adoption for adoption support is welcomed this will be futile unless accompanied by a duty to provide the services identified by the assessment as being necessary.

—If an adopted person has died, (or is prevented by severe infirmity from making use of any provisions available to an adult adopted person), their adoptive parents or their adult sons/daughters should be empowered to use the provisions that would otherwise have been available to the adopted person. NB. This is not the same as allowing the adopted person to appoint someone to act on his/her behalf. An adopted person who has died in childhood or young adulthood will not have had the opportunity to make an appointment.

—In particular, the loss of an equivalent section to the present section 50.5 will adversely affect the descendants of adopted people as this was the route they used to obtain details of their ancestry.

—There must be provision to enable Foundlings (abandoned babies) to use the Adoption Contact Register.

—The possibility of reunion for Foundlings would be greatly enhanced by the repeal of Section 27 of 1861 Offences against the Person Act. Fear of prosecution inhibits birth mothers who abandoned their babies years ago from coming forward.

—Adopted adults in England and Wales need to enjoy the same right as Scots adopted adults who are able to see the whole court file of their adoption.

—There must not be a restriction on providing third party information to adopted adults. Professional judgement and skill must be recognised and trusted to place information in an appropriate context.

—The legal fiction contained in section 64 must be removed. Acknowledging that an adoptive relationship is not the same as a birth relationship does not diminish the value of the adoptive relationship.

—Equalise any charges for use of the adoption contact register so as not to disadvantage birth relatives.

—Make provision for a child to be adopted by the couple with whom she/he is placed regardless of whether the couple are married to each other or not.

—Make it more acceptable for birth parents to consent to the adoption of their child by using a form of words which recognises the reality of their situation.

—Change the criteria for making an adoption order when the child's parent(s) oppose this step. It is important that the threshold is greater than a 51 per cent./49 per cent. split for such a major step with lifelong implications.

23. To reiterate once again it is vital that this adoption bill contains sufficient and appropriate provisions that ensure the adults separated by adoption can gain information about their relatives and have the opportunity to initiate reunion unless a request not to be contacted has been made by the relative.