Provisions for services for adults that appear to be missing from the Bill - The right for birth relatives of adopted adults to access information

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

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2.2 Whilst adoption today is about securing family life for children who would otherwise grow up in the care of local authorities this is a fairly recent use of adoption. For the first 50 years from 1926 to 1976 adoption was used, almost exclusively, to avoid the stigma of illegitimacy and extra-marital births. Unmarried mothers had little choice but to relinquish their babies to adoption. Half a million women went through this experience; they had not harmed their child in any way yet they lost them to adoption. Told to forget and get on with their lives, research has shown most found that impossible. They have grieved an unending, unfocussed grief not knowing even if their son, their daughter was alive or dead. They have seen other people who lost children to adoption in recent years, in perhaps more questionable circumstances, benefit from letterbox or direct ongoing contact. In August 2000 the Department of Health issued `Intermediary services for birth relatives—Practice Guidance'. Drawing upon the research of the Children's Society and the collective experience of a considerable number of agencies this guide detailed the opportunities available to agencies to offer an outreach service to birth relatives of adopted people within present legislation. It offered a ray of hope to birth mothers in particular but also to brothers and sisters whose sibling had been adopted and fathers, many of whom only learned of their paternity many years after the adoption. However agencies were not required to follow this guidance. Even the Minister's foreword highlighted that it was optional. The inequality of service provision across the country and between agencies was reinforced.

The service was in any case only a possibility for those relatives who could identify the adoption agency. Many could not and in other cases adoptions were arranged by private individuals when such placements were lawful so there is no adoption agency birth relatives can approach to ask for an intermediary service.

2.3 It was expected that the new adoption bill would give statutory weight to the practice guidelines and a means of ensuring service provision was available to those affected by non agency placements would be devised. We were saddened to see that no mention of the practice guidance was even alluded to within the bill and no section requires the provision of intermediary services at the request of birth relatives. In the chapter relating to the records of the Registrar General, and the conditions for access to these, steps have been taken to ensure that the windows of opportunity presently available to some birth relatives to initiate renewed contact have been firmly closed.

2.4 Birth relatives all need the opportunity to access an active service now. It is the obvious next step in developing our adoption service from the access to birth records given to adopted adults by the 1976 act. Many Commonwealth countries followed Britain's example in providing access to birth records. They have now incorporated some form of active service for birth relatives as well as adopted people into their legislations, either simultaneously or within a few years of the initial provision. Britain is alone in offering a one sided service. This Bill will be the last chance for a generation to put this right. For the mothers who parted with babies born during the Second World War, for elderly brothers and sisters who remember a baby being born and then being gone this is the last chance.

2.5 Giving statutory duty status to the practice guidance would be one option. It would necessitate additional resources particularly in agencies with many `historic' or inherited records. There would also need to be provision for adoption agency access to the information contained in the register kept by the Registrar General to link birth entries to adoption entries in order to ensure equality of opportunity for individuals who cannot identify the adoption agency involved. NORCAP'S preference would be for new legislation that provides service for birth relatives similar to the provision in Canada, New Zealand and Australia. This would be a more empowering and sustainable option.

2.6 NORCAP can offer guidance on various options that could be put in place as safeguards. These may include:

—Protection of vulnerable children effected by requiring service is only provided when the adopted person is an adult.

—Providing the service only if the adopted person is aged 21 or over, (the age required to adopt an unrelated child)

—Providing for access to information 30 years the granting of adoption order (the period of closure of cabinet papers).

—Making provision for a veto to be lodged to prevent the disclosure of identifying information.

—Applying the provision only to those cases where the adoption order was made before 12 November 1975. (The date at which the law was retrospectively changed to provide access to birth records. There would then be an equal and reciprocal need for the adults involved in an adoption situation to make accommodation to take account of the needs of the other adults involved.)

2.7 However, fear that a tiny minority of people would not wish to communicate with birth relatives is not a sound reason to fail to provide the opportunity to the vast majority who would welcome it. The modified provision of the Adoption Contact Register (clause 65-67) does not effectively address these needs. The service is passive. In the 21st century people expect an active service. The proposed Bill does not meet the needs of adults affected by adoption. Our preference is for a new section that would read:—

2.8(1) Subject to what follows, the Registrar General shall, on an application made in the prescribed manner, by a birth relative of an adopted person and in those cases where the Registrar General holds a record of the Adoption Order of the individual to whom the applicant is related by blood or marriage as defined in regulation, supply to the applicant on payment of the prescribed fee (if any) such information is as necessary to enable the applicant to obtain a certified copy of the record of the adoption of his relative.

2.8(2) Before supplying any information to an applicant under subsection (1) the Registrar General shall inform the applicant that counselling services are available to him at the places listed in subsection 3 below.

2.8(3) Where an applicant who is in England or Wales applies for information under subsection (1) it shall be the duty of the persons and bodies mentioned below to provide counselling for him if asked by him to do so

2.8(4) The persons and bodies are:—

—The Registrar General

—Any local authority

—Any adoption society in so far as it is acting as an adoption society within England and/or Wales.

—Any body licensed by the Secretary of State to provide Adoption Advice and Support Services to Adults (see below)

2.8(5) When the applicant indicates from which body in subsection (3) he chooses to receive counselling the Registrar General shall send to that body the information to which the applicant is entitled under subsection (1).

2.8(6) Where an applicant applies for information under subsection (1) the Registrar General shall supply the information to him only if the person to whom it relates:—

is an adult

or has attained the age of at least twenty one years

or it is thirty years or more since the date on which the adoption order was made

or the adoption order of the person about whom the applicant has applied for information was made before 12 November 1975.

2.8(7) The Registrar General shall not supply any information under subsection (1) if the adopted person to whom the information relates has requested in the prescribed manner that the information is not made available to any relative.

2.8(8) Where an applicant applies for information under subsection (1) the Registrar General shall not supply the information to him unless he has attended an interview with a counsellor arranged by a person or body from whom counselling services are available as prescribed in subsection (2).

2.8(9) Where the Registrar General is prevented by subsection (6) from supplying information to a person who is not living in the United Kingdom, he may supply the information to any body which—

2.8(10) The Registrar General is satisfied is suitable to provide counselling to that person, and has notified the Registrar General that it is prepared to provide such counselling. In this section prescribed means prescribed by regulations made by the Registrar General.

2.9 If the opportunity for birth relatives to initiate contact with adopted adults is to be limited to giving statutory duty status to the Intermediary Services for Birth Relatives—Practice Guidelines *(2) then provision for this will need to be made both in section 3(8)a and in chapter 111 by inserting a new section between the existing section 48 and section 49. It may read as

2.10 The birth relative of an adopted adult person has the right to access an intermediary service from the adoption agency involved in the placement of their relative for adoption or from the local authority adoption agency in which the birth relative currently resides. The intermediary service will provide that the adopted person will be made aware, in a manner specified in regulations, that his birth relative would wish to communicate with him.

2.11 A subsequent section will need to provide:—

An adoption agency which has a duty to provide an intermediary service for a birth relative, but was not the adoption agency which placed that adopted person for adoption, shall be entitled to require the Registrar General to provide information to the agency that will enable the adoption agency to identify the entry of the adopted person in the Adopted Children Register.

2.12 There will need to be a consequential change to Section 62 to authorise the Registrar General to provide this information to the adoption agency.

2.13 Anything less than the clauses detailed above will fail to meet the needs of an increasingly aged group of birth relatives.

2.14 In our submission to the Prime Minister's Review of adoption we emphasised the importance of making provision for the adoptive parents or long term carers or surviving spouse of an adopted person who has died or is disabled to be allowed to act on behalf of the adopted person. It is possible that section 48(2) was envisaged to address the need we had highlighted. This is not achieved. In the circumstances we have in mind the adopted person is not able to appoint someone to act on his/her behalf. This may be because the adopted person died in childhood or because he/she is disabled. In either case the right must be available automatically to other appropriate people who can act on his/her behalf to access information if necessary and to register on the adoption contact register. A clause to this effect may be added to section 48.

2.15 There needs to be provision to enable the descendants of an adopted person who has died to inherit the right of access to information and services that the adopted person would have enjoyed had he/she not died. This provision is available to descendants of adopted people in Canada and Australia. The need for such specific provision is illustrated by the number of individuals who have resorted to making application to the High Court under the present section 50(5) Adoption Act 1976. Their applications have succeeded but a specific provision would avoid the need to have to resort to such costly and potentially intimidating procedures.

2.16 Another significant group of people who have again been overlooked by this Bill is Foundlings—often spoken of as abandoned babies—and their relatives. They have no access to any information about their birth circumstances as a result of the route by which they came to need adoption.

2.17 However despite their unfortunate early circumstances provision must be made so that it is straightforward for information to be exchanged at a later date. The provisions of the adoption contact register must be amended (see our paragraph 3.9) and the law which specified that the abandonment of children under two years of age is a criminal offence, offences against the person act (1861) section 27 must also be changed. This will ensure it does not deter any relative coming forward and offering information that may be so important to the adopted person even if it is many years later. Regulations should prescribe a protocol that must be followed throughout the UK whenever an infant is found, apparently abandoned, and who may need adoption if he/she cannot be returned to the birth family. The number of such incidences is increasing The protocol should recognise not only the immediate needs of the infant but the potential life long needs and also the priority which must be given to seeking to locate the parent(s).

NORCAP REGRETS THAT NONE OF THE PROVISIONS ABOVE FEATURE IN THE ADOPTION AND CHILDREN BILL OF 19 OCTOBER 2001.2.18 Many people wish to access information and intermediary services from agencies independent of the social services or placement agency. We are unable to recognise the proposal contained in the White Paper at 6.46 that suitable organisations could be licensed to undertake this work. The Minister (Mr Hutton) speaking in the second reading debate 26 March said `Local authorities may provide services by arranging for them to be provided by voluntary adoption agencies or other parties prescribed in regulations. This will enable them to draw on the Voluntary Sector that has huge groundswell of expertise and resources'. NORCAP is just such an organisation with probably the largest body of experience in providing services to adults affected by adoption.

2.19 We would propose that voluntary organisations such as NORCAP should be able to apply to the Department of Health or Local authority for approval and licensing as an Adoption Support and Advisory Service for Adults. Approval should be subject to compliance with criteria laid down in regulations. The process should be suitably rigorous but not as extensive or complex as the approval of an adoption society that will carry responsibility for approval of adopters as well as placement and post adoption support of vulnerable children.

2.20 The licensing of Adoption Support and Advisory Services for Adults could encompass not only birth records counselling but handling provision of access to information from adoption files on behalf of adoption agencies and for offering intermediary and support services. Licensed services could be authorised to operate as if an adoption agency in terms of access to information within those areas of work which relate only to the adoption of a person who is now an adult.

2.21 If the role of licensed services is not recognised in primary legislation the opportunity for the statutory sector and service users to effectively use their expertise will be very limited as many clauses limit the sharing of information and service provision to adoption agencies only. If licensed services are introduced it may well free up time in statutory and voluntary adoption agencies to meet the placement needs of today's children as the post adoption work with adults may be done elsewhere.

NORCAP is pleased this provision is included in the revised bill3 Provisions which need amendment concerning adults Ì3.1 Section 48(c) provides that an adopted adult has the right to obtain a copy of any document or order prescribed by rules, from the court in question. In Scotland, Adopted people already benefit from the right to read the entire `court process'. We trust that this section will be clarified to provide equality of opportunity for adopted adults in England and Wales and will not result in more restricted provision.

This clause still needs expansion

3.2 Section 49(1) will result in adopted people having access to less information in the future than many gain now. Adopted people need access to information that contains identifying details about their birth parents, their siblings, their grandparents and previous foster carers. If they had not been adopted this information would never have been taken away from them. Adoption agencies have shared background information using their discretion as part of the work connected with birth records counselling. The opportunity to use professional judgement must not be removed. Whilst it may simplistically appear the `safe' option to withhold any information which identifies a third party it is vital to appreciate that given information people make informed judgements. If information is withheld people still make judgements but they are more reckless as they are not well informed. Adoption agencies must take responsibility for consequences occurring as a result of information they withhold just as they should for consequences occurring as a result of information they share.

3.3 Given they must take professional responsibility they must be allowed the discretion to exercise professional judgement and not be constrained by the proposed wording of section 49(1). NORCAP also believes the failure to supply comprehensive information to an adopted person about his/her background may constitute a breach of the adopted person's rights under Article 8 clause 1 and 3 of the European Convention of Human Rights.

The judgement in the case of Gaskin v UK12 EHRR 36 may be significant in this connection. Remove the restriction on providing an adopted person with third party information.

The provisions of clauses 53—62 further restrict access to vital information.

3.4 We are unhappy that the Bill proposes a legal fiction in section 51(1) and (2). This must be revised. A person adopted by a single male adopter cannot be said to born to that adopter in wedlock. Adopted people may need the security of knowing that adoption is permanent and will not be revoked but they do not need unrealistic fairytales. Similarly it is most inappropriate to pretend they are not the child of any other person, they remain the biological child of `other' persons. Those parents may not have parental responsibility and may not have any role in the adopted child's life but they remain the biological parents. This section is in conflict with section 58, as that section specifies that the biological relationships of the adopted person are applied in connection with schedule 1 of the Marriage Act 1949 and sections 10 and 11 of the Sexual Offences Act 1956 (incest) No amendment made

3.5 Section 53 should be amended so an adopted person may inherit peerages and lands associated with any peerage. It is unjust to exclude them. It appears this clause has been amended.

3.6 Section 62(4) We are unhappy with the wording of this section. A section of legislation identical to this section but without the words `In exceptional circumstances' has been included in every adoption act from 1926 onwards.

3.7 Since 1994 three reported cases have come before the High Court. In Re H (1994) the need for the application to be exceptional was considered by Mr Justice Thorp (as he then was). He concluded there was only a need for an applicant under this section to make a case of sufficient weight and merit to convince the court of reasonableness of making an order. In Re D 1996, in the Court of Appeal, the substance of this judgement was overturned by the Lord President Sir Stephen Brown. He determined that the application should demonstrate exceptional circumstances and potential benefit to the adopted person. However in a very recent judgement Mr Justice Sumner made an order under this section having considered the unusual circumstances of the case and taking account of the implications of the European Convention on Human Rights. NORCAP played a very significant role in both Re H cases and provided an affidavit in Re D.

3.8 NORCAP is convinced the clause requiring the Registrar General to disclose the link between a birth entry and an entry in the adopted children's register only when ordered to do so by the High Court is a sufficiently high threshold. The court would not make an order frivolously. The court would ensure that the application was reasonable of sufficient weight and merit to justify the making of an order. Amendment—Delete `In exceptional circumstances.'

N.B. The response to this request has been to remove the clause, and the right of application to the High Court altogether.

3.9 NORCAP has serious reservations concerning the operational detail of the adoption contact register. These have been detailed to the Registrar General and Officers at the Department of Health over the past ten years and regularly reiterated. We do not consider that it is appropriate for the operational detail to be specified in primary legislation. We understand the Registrar General would support an amendment that prescribed the duty to provide an adoption contact register but put the operational detail into regulation. We propose that sections 65,66 and 67 be replaced by a revised section 65 `The Registrar General must cause to be maintained a register to be called the Adoption Contact Register. The operation of the Adoption Contact Register and the fees to be applied, if any, shall be prescribed by regulations.

Appears acted upon.

3.10 However it is essential that when drawing up the regulations, which are likely to be based upon the present content of sections 65, 66 and 67, adequate provision is made to provide flexibility. The Registrar General will then be able to process registrations from Foundlings (abandoned babies—see para.2.16 above). The regulations must also allow registrations by persons authorised to act on behalf of an adopted person (see para.2.14 above). Special provision must be made to enable people adopted overseas to use the register and for the birth relatives of all these groups to be able to register with ease. Regulations should also provide for the Registrar General to follow up communications to ensure they have been received by the individual for whom they are intended.

3.11 NORCAP hopes that the fees charged for use of the contact register will be equalised. Whilst the organisation does not dispute that the differential charge may reflect the different costs of registration, no link can be achieved unless a birth relative registers on part two and an adopted person on part one. Therefore the total cost of registration of both parties should be equally divided as the registration cost for either party.

The proposals in the two clauses above have not been acted upon.