Adoption and Children Bill

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Jacqui Smith: I was describing how the amendments relate to clause 53, which provides the basis for the Government's approach to all the information provisions that we shall discuss.

The adoption stakeholders were concerned principally with the proposed restriction on the adopted person's right of access to his birth records. Some also commented on the need for prospective adopters to have better and fuller information on the child whom the agency proposed to place with them. Clauses 53 to 62 provide for the adoption agency to be the single gateway for access to identifying information, including birth records. The Registrar-General retains his duty to record and keep the adopted person's birth records under clauses 74 to 78. The Registrar-General will, of course, retain his duty under the Adoption Act 1976 to maintain the registers.

The Government believe that the adoption agency is best placed to provide identifying information, to contact the interested parties, to deal appropriately with such sensitive information and to arrange for the provision of counselling. The evidence that we heard broadly supported that view. That model is an improvement on the current situation, whereby access to the birth records of the adopted person is obtained through the Registrar-General without any involvement from the adoption agency. In addressing the issue of access to birth records, we have carefully

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considered the representations made to the Committee and how to address the significant concerns that have been expressed.

4.45 pm

Under the current legislative framework, the adopted adult has a right—provided by section 51 of the Adoption Act 1976—to obtain information from the Registrar-General that enables him to access a copy of his birth certificate, which identifies his birth parents and their address at the time of his birth. The only exception to that is when the Registrar-General decides that it is appropriate to withhold the information on public policy grounds. In such cases, the adopted person can challenge the Registrar-General's decision by recourse to the High Court.

Committee members know that we have been concerned about the small number of cases in which access to birth records might pose a significant risk to the birth parents. The hon. Member for East Worthing and Shoreham (Tim Loughton) asked me about evidence given at the evidence-gathering sitting. I refer him to an amendment to the evidence that was given to us on behalf of the Association of Directors of Social Services, in the name of Rob Hutchinson, the chair of the ADSS children and families committee. He said:

    ''The principle of openness is now well established in adoption practice. The Association of Directors of Social Services recognises that adopted adults greatly value their right to obtain their original birth certificate and believes that this right should be preserved. However, some concerns remain about the small minority of cases where individuals involved may be placed at some risk.''

We believe that our new proposals balance that very small number of cases with the need for people to be able to gain access to, and copies of, their birth certificates. We have listened carefully and have weighed the evidence now available to us. As a consequence, we have decided that adopted people should retain the right to access the information that they need to enable them to obtain copies of their birth certificates, and we propose to amend clause 58 to provide for that.

We intend broadly to mirror the current legal position, although the route of access will now be through the adoption agency. When an adopted person aged 18 makes a request, he will be able to obtain the information that he needs from his adoption agency in order to obtain a copy of his birth certificate. The only exception will be in those cases where the adoption agency considers that exceptional circumstances justify recourse to the courts to withhold information.

Mr. Dawson: I recognise and welcome all that my hon. Friend is saying about the role of adoption agencies. Can she confirm that those adults, however unwise others might think them, who wish to have access to their birth records without any counselling process, will be able to make application through the adoption agency, without being subjected to unwelcome social work intervention?

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Jacqui Smith: Although we have made provision for the single gateway to be through the adoption agency, that does not imply a necessity to receive counselling through that agency. In such circumstances as the adoption agency considers justify the withholding of information, the adoption agency will need to seek the permission of the High Court not to disclose that information. The High Court will make an order only if it is satisfied that the circumstances are exceptional. I hope that that change will allay the concerns that have been expressed and will, in the cases in which a court gives its consent for information to be withheld, provide a safeguard.

As for other identifying information about the birth parents and others, we now propose that all adults involved in a person's adoption should be treated in the same way. The provisions in the Bill were based on our aim to give all such people a right to express their wishes about the sensitive information that identifies them. However, that was complicated by the need to provide for birth parents to be able to object to the release of their information while others were asked for their consent. That distinction was based on the presumption that that information about the birth parents would be released unless they exercised a right of veto. As we now propose to retain the right of the adopted person to access his birth records, we consider that the adoption agency should ask the birth parents for their consent to the release of identifying information held by the agency—but not in the case of the birth records information. That mirrors our intentions with respect to the disclosure of identifying information about everybody else involved in a person's adoption.

Under our proposals, a person would be able to ask the adoption agency to provide identifying information about anyone involved in an adoption. Where they decided to proceed to process such an application, adoption agencies would be required to take reasonable steps to seek the views of the person who would be identified, including establishing whether they consent. If their consent were forthcoming, we would expect the information to be disclosed, unless the agency felt that it was not appropriate to do so. Where consent was refused or could not be obtained, the agency would be allowed to disclose the information if it were safe and appropriate to do so.

Kevin Brennan (Cardiff, West): I would like to return to the matter of releasing identifying information on behalf of the adoptive person. Will the Minister confirm that she would not anticipate that adoption agencies would feel in any way compelled under the clauses, when an adopted person was seeking identifying information, to contact the birth parent to seek permission in order to protect themselves against the fact that they have not gone to the High Court? Would she anticipate that in the majority of cases there would be no need for an adoption agency, when approached by an adopted person, to contact the birth parent before releasing the identifying information?

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Jacqui Smith: The provision relating to the High Court deals with the provision of information necessary to gain access to the birth record. It would not be necessary to contact the birth parent in such cases. I was moving on to other identifying information. There is now a distinction between those two categories.

The other area about which concern was expressed in evidence-gathering was that of the quality and range of information about the child that is made available to prospective adopters. Doubts were expressed about the way in which the Bill provides for that. In particular, there were concerns that information needed to inform prospective adopters prior to agreeing to a proposed match might be held back until the time of the adoption order.

It has always been the Government's intention to use the Bill's provisions to ensure that prospective adopters receive full and appropriate information in advance of the adoption order. In the light of the concerns expressed, we have tabled a new clause to provide for the disclosure of information during the adoption process. To ensure that the means used to achieve our aims allow for some flexibility should the process of providing information to adopters need to be improved in the future, the clause provides an enabling power through regulations to require adoption agencies to release certain information to prospective adopters at three key stages.

Mr. Jonathan Djanogly (Huntingdon): This morning, we were talking about rights of appeal to a panel, and one of the matters we discussed was the release of information. That is one of the areas in which the Government have acknowledged that they will be giving rights of appeal to the panel. That being the case, has the Minister thought about the timing of people's ability to appeal to the panel? In other words, if an adoption agency is considering releasing information, at what point would someone be able to exercise the right of appeal that the Government have said they will grant under clause 12? Will the Minister please explain how that mechanism will work?

Jacqui Smith: The review mechanism might be used in a complicated range of ways. For example, if an adult had approached an adoption agency and that agency had sought consent from the person for about whom information was being sought and had gained that consent, but then for some exceptional reason decided not to provide the information to the person who had requested it, that person could then resort to the independent review mechanism.

Alternatively, if the person being asked for their consent had failed to give it, but the adoption agency still believed—we are providing for discretion—that the circumstances were such that the information should be made available to the person who had asked for it, that would be another opportunity for an appeal to the independent review mechanism.

I talked about prospective adopters, and outlined the fact that we will discuss a new clause that will enable us to set regulations to state the information that should be released to prospective adopters at three

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key stages. I am sure that we will have the opportunity to discuss packages of information as we discuss the new clause. As I informed the Committee in my letter, our amendments also ensure that the adopted adult can access the information that his adopters receive, if he wants to.

Striking the right balance in the provisions has been difficult. Information that identifies people can be sensitive, and although many adoptions include some contact between the adoptive family and the birth family, in some circumstances it is not appropriate to share identifying information, especially when the adopted child's welfare is at risk. The amendments reflect understandable concerns and provide for the creation of a fair and balanced system for access to sensitive identifying information on someone's adoption.

Under current regulations, an adoption agency must keep indexes to all its case records, including those that detail the making of an adoption order, for at least 75 years. All other records must be held for as long as the agency considers it appropriate. All the records must be kept in a place of special security. We know that practice varies greatly. Some agencies keep only patchy records, while others have lost or disposed of information for past adoptions.

The adoption White Paper pledged that the Government would provide people with a consistent system for access to information about their history. The provisions enable regulations to be made to prescribe the information that an adoption agency must keep in relation to someone's adoption, the form that it should take and the way in which it should be kept. The provision also enables the making of regulations that govern the transfer of information between adoption agencies.

The amendments will make the group of clauses apply to information about an adopted person, rather than to information that an agency must keep in relation to a person's adoption. That ensures that we can regulate all the necessary information under the clauses, as I have spelled out. It makes it clear that the group of clauses relates to a scheme for the disclosure of identifying information once an adoption order has been made. The information will be about the adopted person, his birth parents, his adoptive parents and any other person involved in his adoption, such as the adopted person's siblings, grandparents or the social worker.

The amendments will enable us to set out regulations that apply to the information to be kept, and that govern the transfer of information when, for example, one agency is to cease and it is essential that its records pass into the safekeeping of another agency. In such cases, regulations provide a better and more flexible legislative means of detailing the responsibilities that we intend to place on adoption agencies for keeping information in relation to a person's adoption, its form and the way in which it is kept. On that basis, I commend the amendments to the Committee.

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