Adoption and Children Bill

[back to previous text]

The Chairman: With this we may discuss the following: Government amendments Nos. 205 and 207.

Amendment No. 7, in page 33, line 20, leave out subsection (6).

Jacqui Smith: Clause 58 outlines the conditions on the disclosure to an adopted adult of information held by the courts or by adoption agencies. With new clauses 7 and 8, it spells out our new proposals on disclosure of protected information. We made it clear when we introduced the Bill in October that the provisions on access to information were new and that we would welcome views on whether they struck the right balance. Following the weight of representations and with the benefit of having set up a Special Standing Committee to hear evidence, we are making significant changes to the provisions.

The clause deals with the conditions for the disclosure of information about birth records held by the court. Under current law 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 the birth. The only exception is when the Registrar-General decides 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.

We have reviewed the existing right, taking into account the views of stakeholders and others and the

Column Number: 740

concerns raised about the very small number of cases where unfettered access to birth records could pose a significant risk to the birth parent. Under the amended clause, the adopted adult will retain the right to access the information that he needs to enable him to obtain a copy of his birth certificate. We have broadly replicated but improved on the current legal position. The route of access will now be through the adoption agency.

On making a request, the adopted adult would be able to obtain the information that he needs in order to acquire a copy of his birth certificate from his adoption agency. The only exception would be cases in which the adoption agency considered that exceptional circumstances justified recourse to the courts to withhold information, such as when there was a potential serious risk to the safety of those identified. In such a case, the adoption agency would have to seek the High Court's permission not to disclose the information. The High Court would make an order only if it were satisfied that the circumstances were exceptional. I hope that that change will allay the concerns that have been expressed, while still providing a safeguard whereby a court may give its consent, in exceptional circumstances, for information to be withheld.

Amendment No. 204 amends clause 58(2), which provides that an adopted person has the right, at his request, to receive the information that is provided to his adoptive parents under clause 57. Under the Bill as originally drafted, that is the information that the adopters would receive at the time of the adoption order, but clause 57 has now been removed, to be replaced by new clause 6 for prospective adopters; consequently, the reference to section 57 information needs to be omitted.

Amendment No. 205 will amend clause 58 to provide that the adopted person has a right, at his request, to receive the information that is necessary for him to obtain a certified copy of his birth certificate, unless the High Court orders otherwise. That is the intention that I outlined at the beginning. New subsection (2)(a) inserted by the amendment indicates that the High Court may make an order withholding the information if the circumstances are exceptional, and makes it clear that that would be done on an application by the adoption agency. The amendment also provides, in new subsection (2)(b), for the adopted adult to have a right to any prescribed information disclosed to the adopters by the agency under new clause 6.

Finally, amendment No. 207 removes subsections (5) and (6) of clause 58 because the disclosure of protected information is now provided for in new clauses 7 and 8, to be discussed later, the intentions behind which I outlined in response to an intervention from the hon. Member for Huntingdon in the sitting before Christmas and set out in my letter. That is the reasoning behind amendments Nos. 204, 205 and 207, which do make happen our intentions with respect to the new provisions on access to information, which we discussed more broadly before Christmas and earlier today.

Column Number: 741

Tim Loughton: None of the amendments ''do make happen'', as the Minister puts it, what we would like to have happened a long time ago. This whole thing should never have happened in the first place. We will support the amendments. Doing so will make amendment No. 7, which is grouped with this, rather superfluous, so I shall not press it.

10.30 am

The Minister has given a short explanation—great explanation would have been welcome—of the way in which the Registrar-General will withhold information on public policy grounds, to be challenged by the court. How many of the applications now going through adoption agencies does she envisage will be referred to the courts? I am pleased that the circumstance is exceptional, but what sort of circumstance are we talking about? How will it be monitored so that there is consistency across adoption agencies and the leave of the High Court is not overly sought? What numbers are we talking about? The process is expensive and cumbersome, so it would be useful to have more information about the nature of the exceptional circumstances and how the system of going through adoption agencies and producing birth certificates will work. While we are considering this set of amendments, the Minister might like to give us a few more practical examples. The intention is right, and we agree with the big U-turn that the Government have made, but we need a more detailed explanation of how the system will work. I shall be grateful if the Minister provides that.

Jacqui Smith: The provision does not exactly replicate the current position with respect to access to birth records. One of the problems that we highlighted was the fact that it would be possible for somebody, without having gone through an adoption agency, to make contact directly with the Registrar-General in order to receive information that would enable him to access his birth record. We are proposing, as a refinement of that process, that access be through the adoption agency, allowing—as we all agree—for referral in very exceptional circumstances to the High Court.

To obtain a copy of one's birth records, one will have to provide the information necessary for the Registrar-General to make the links between one's birth record and one's record of adoption. That would produce the information to enable access to one's birth certificate. The change is that the Registrar-General will provide the adoption agency with the information to enable it either to pass on the information to the individual or, in rare cases when there could be cause for concern—I shall give examples in a moment—to consider it.

The Registrar-General has blocked the discharge of information in order to allow access to the birth certificate in one case since 1976, so the numbers are not significant. However, as we have previously argued, the matter could become marginally more significant in future. The exceptional circumstances with which we are concerned are those, for instance, that might entail a risk of death to the birth parents if the adopted person were able to identify them. The issue is not so much about numbers but the nature of

Column Number: 742

the risk that such exceptional circumstances might involve.

Tim Loughton: I appreciate fully what the Minister is saying, but who determines the risk? Is there not other provision in law, such as the issuing of injunctions or restraining orders and other action, if a risk is perceived? Every adopted child who came from an abusive home might be a risk to the parents in question, but only a tiny minority would prove to be so.

Jacqui Smith: The previous difficulty was that the Registrar-General could determine whether a risk existed only if it was obvious from the circumstances of the approach for information. Because the adoption agency has much better information and understanding about the circumstances of the adoption and the potential relationship between the birth parents and the adopted person, it is in a better position to evaluate the potential for risk.

However, the agency will not be able to make a decision depriving the adopted person of their right to a birth record. It will be able only to apply to the High Court for permission not to disclose the information. The court will then consider whether it is justifiable to withhold the information that would enable the person to obtain access to their birth record. A pretty high hurdle will have to be cleared. The adoption agency and the court will have to consider risk and the appropriateness of withholding the information.

The Association of Directors of Social Services has provided some examples of cases of concern over the possibility of tracing and contacting individuals. One concerns an adopted person

    ''who had reached 18 years of age, and sought information which would lead to him finding out the whereabouts of his birth parents as he wanted to 'kill them'. Apparently he had been badly abused as an infant and had a facial disfigurement. He said 'every day when I look in the mirror it reminds me of what they did to me and it makes me very angry'.

In a second example, an adopted Asian girl

    ''who was part of a very close knit family (which sought to exclude the authorities and any outsiders) was very seriously neglected as an infant over a significant period of time—indeed her doctors didn't think she would survive. The child was placed for adoption. Now that she is 18 she wants to trace her birth family: it is considered by the agency that she may be at risk if she does locate them as she is likely to be an extremely unwelcome visitor.''

Another point that has been made is that the vast majority of adoptions happen well after birth, so people inevitably know who their birth parents are. Also, the vast majority of adoptions are open, which is generally considered to be good practice. We are attempting to make provision for rare cases and exceptional circumstances.

I have given information about the situation that has existed up until now, but I do not have an estimate of future figures. Perhaps the issue will never arise, but if it does, the circumstances might be so important as to necessitate the provisions in the clause. That justifies the balance that we have struck on access to birth records. There should be a right to access the information necessary to get one's birth record, and access should be through the adoption agency, which is best placed to know the particular circumstances.

Column Number: 743

However, in exceptional circumstances, the High Court should still be able to prevent that right from being exercised.

Amendment agreed to.

Amendments made: No. 205, in page 33, line 11, at end insert—

    '(a) the information within section 54(1A)(a), unless the High Court orders otherwise,

    (b) any prescribed information disclosed to the adopters by the agency by virtue of section [Disclosing information during adoption process].

    (2A) The High Court may make an order under subsection (2)(a), on an application by the appropriate adoption agency, if satisfied that the circumstances are exceptional'.

No. 206, in page 33, line 16, leave out 'or section 76 information'.

No. 207, in page 33, line 17, leave out subsections (5) and (6).—[Jacqui Smith.]

 
Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index


©Parliamentary copyright 2002
Prepared 10 January 2002