Adoption and Children Bill

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The Chairman: With this it will be convenient to consider the following: Government amendments Nos. 217 and 232.

Government new clause 7—Disclosing protected information about adults.

Government new clause 8—Disclosing protected information about children.

Jacqui Smith: We now—[Interruption.] I am glad that hon. Members have returned refreshed, keen and enthusiastic after their break. We come now to a significant debate on clause 58 stand part and related Government amendments and new clauses.

Clause 58 provides for the disclosure of information held by adoption agencies and courts to the adopted person when he reaches the age of 18. Previously, it gave the adopted adult a new right to receive from his adoption agency the same information as his adoptive parents received at the time of the adoption order. Amendment No. 205 provides the adopted adult with a new right to receive from his adoption agency prescribed information that is given to his adoptive parents under new clause 6. It is intended that he will receive the same information as his adoptive parents.

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As now amended, the clause gives the adopted adult the right to receive from his adoption agency information, such as his birth name if he does not already know it, which is necessary for him to obtain a copy of his birth certificate from the Registrar-General. That is the key change, which demonstrates that we have listened and responded to concerns about restricting adopted persons' access to their birth certificates. As I said this morning, an adoption agency that wants to withhold the information that the adopted adult needs to obtain a copy of his birth certificate must now apply to the High Court for an order, and the court will grant such an order only if it is satisfied that the circumstances are exceptional.

The clause also gives the adopted adult the right to request from the court a copy of a prescribed document or prescribed order that relates to his adoption, provided it does not contain protected information about another person. As amended, it removes the restriction on access to information that would enable the adopted adult to obtain a copy of his birth certificate, so it fits into the overall structure of the provisions on access to specific forms of information. On clause 55, we discussed the release of information that was not protected; on new clauses 7 and 8, we shall discuss the Government's proposals for access to other identifying information, whether it relates to an adult or to a child.

Amendment No. 217 would amend clause 61, which provides for a group of powers through regulation. We intend to use those powers to balance the rights of individuals and to regulate the operation of the new duties that the provisions place on adoption agencies and the Registrar-General. The amendment provides for regulations that would allow the payment of a fee for the disclosure of information under clause 58 and in the prescribed circumstances under new clauses 7 and 8. It therefore ensures that the provisions in clause 61 on the payment of fees also relate to the new clauses.

Amendment No. 232 makes a consequential change, and is based on changes to clause 133 under new clauses 7 and 8. This minor consequential change provides for the commencement of the Bill. It provides for new clause 7, Disclosing protected information about adults'', and new clause 8, Disclosing protected information about children'', to be commenced by the appropriate Minister for England, the Secretary of State, and for Wales, the National Assembly. That is consistent with the fact that all the clauses in this group—clauses 53 to 62—are to be commenced by the appropriate Minister. The amendment makes the necessary consequential changes to the clause.

Mr. Henry Bellingham (North-West Norfolk): I am slightly confused. Will the Minister tell me why the words that amendment No. 232 would insert are in brackets?

Jacqui Smith: I suspect that it has something to do with whether we have already debated and agreed the provision, or something like that—[Laughter.] Apparently, it has to do with the fact that they are the titles that will be given to new clauses 7 and 8, which I

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was just about to come to before I was interrupted by the hon. Gentleman with that crucial point. I hope that he is reassured by my answer.

New clause 7 provides for the process that an adoption agency must undertake when an application is made for the disclosure of protected information about an adult. As I explained in my letter to the Committee, in the light of our change of approach to the birth records provisions, which we discussed at length, we have reconsidered the provisions for the disclosure of other protected information by adoption agencies to ensure that its disclosure is handled sensitively and in a way that ensures that the views of those who are identified therein are taken into account.

We tabled other amendments to give the agency discretion to take into account all the circumstances of the case, including the welfare of the adopted person and any views expressed by the person who would be identified by the disclosure. We will therefore propose that clause 59 should not stand part of the Bill and that subsections (5) and (6) of clause 58 should be omitted, as we set out in amendments Nos. 208 and 207.

New clause 7(1) provides that the new provisions will apply where

    a person applies to the appropriate adoption agency for protected information''

    none of the information is about a person who is a child at the time of the application.''

Subsection (2) provides that

    The agency is not required to proceed with the application unless it considers it appropriate to do so.''

We envisage that it will be possible for that decision to be referred to the independent review mechanism that we have previously discussed. When an agency considers it appropriate to proceed with an application, it will be obliged by subsection (3) to—

Sandra Gidley (Romsey): May we go back to subsection (2)? I am slightly worried because agencies may take different approaches. How are we to ensure that there is consistency and that information is not withheld unless that is essential?

Jacqui Smith: One of the ways in which we will ensure consistency is by setting out, as we do in new clauses 7 and 8, the conditions for the process of disclosure of information, and by using regulations to prescribe the considerations that adoption agencies might bear in mind at various stages of the process. What is important at the second stage, set out in new clause 7(2), is that the agency has discretion to decide not to continue with the process of identifying consent of the person about whom information is going to be provided where, for example, it is clear that that is an inappropriate approach, or it is vexatious or something like that. As I have suggested, the ability to refer that to an independent review will be another safeguard, ensuring that that decision is not made inappropriately by the agency.

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The next step is that when an agency considers it appropriate to proceed with the application, subsection (3) obliges it to

    take all reasonable steps to obtain the views of any person the information is about as to the disclosure of information about him.''

Subsection (4) gives the agency a

    discretion to disclose the information if it considers it appropriate to do so.''

That is important because it enables the agency, in the light of particular circumstances or information, or despite the fact that somebody has consented to the disclosure of that information, to use its discretion as to whether disclosure would be appropriate in a given case. Subsection (5) provides that in making a decision under subsection (4) as to whether it is appropriate to disclose the information,

    the agency must consider the welfare of the adopted person''

and any views obtained under subsection (3) of a person whom the information is about, any matters that might be prescribed in regulations, and

    all the other circumstances of the case''.

Under subsection (6) we ensure that the clause does not apply to a request for information under clause 58(2) where, for example, a request is made by an adopted adult for either the information needed to enable him to obtain a certified copy of his birth record, or the information given by an agency to his adopters under new clause 6. Applications by an adopted person for the disclosure of all other protected information fall within the scope of the new clause.

Kevin Brennan (Cardiff, West): I want to be clear about this. Is it the Minister's view that new clause 7 could be used by birth relatives to attempt to obtain information about an adopted adult, but that that would apply only to adoptions that take place after the Bill is enacted?

Jacqui Smith: I thank my hon. Friend for that intervention. That is the position with respect to all the access to information provisions that relate to the position subsequent to the enactment of the Bill.

Tim Loughton: Why?

Jacqui Smith: I think that we have touched on the matter before. First, it is appropriate when people undertake an adoption that they are clear about the basis—especially in relation to access to information—on which they make that undertaking. They should be clear about what they are entering into. It is appropriate to draw a clear line between past and future adoptions, so that birth and adoptive parents and adopted people can be aware of their rights to access information, people have been informed and adoption agencies have had time to adjust their practices to their new responsibilities. When people enter into a difficult arrangement that is surrounded by emotion, is it not reasonable that they should do so with some certainty about the implications of future access to information about them?

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