F L v Registrar General
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RODERIC WOOD |
| Judgment Date | 24 May 2010 |
| Neutral Citation | [2010] EWHC 3520 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD10A00034 |
| Date | 24 May 2010 |
[2010] EWHC 3520 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Strand
London
England WC2A 2LL
Mr Justice Roderic Wood
Case No: FD10A00034
Mr Vavrecka (instructed by McMillan Williams) appeared on behalf of the Claimant
Mr S Leech & Mr W Tyzack (for judgment only) (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The Application
: This is an application by FKL, the daughter of WC, who was adopted by an order of the Inner London Juvenile Court sitting at Old Street Magistrates' Court on 4 May 1927. The respondent to the application is the Registrar General.
FKL seeks the disclosure of information from the Registrar General which would enable her to begin the process of finding more about her father's birth family.
The application is issued pursuant to Rule 105(1)(b) of the Family Proceedings Adoption Rules, 2005. It involves a point of construction in relation to section 79(4) of the Adoption and Children Act, 2002 hereinafter referred to as "the 2002 Act".
Although similar territory has been traversed in relation to the statutory predecessor of the 2002 Act, namely in relation to section 50(5) of the Adoption Act, 1976 hereinafter referred to as "the 76 Act", it is thought that there is no reported case on section 79(4) of the 2002 Act.
The Registrar General has no discretion in the matter of disclosure, he can only disclose material in this case if ordered so to do by the High Court.
Relevant Statutory Provision
Section 79 of the 2002 Act reads:
"(1) The Registrar General must make traceable a connection between any entry in the registers of live-births or other records which has been marked "Adopted" and any corresponding entry in the Adopted Children Register.
(2) Information kept by the Registrar General for the purposes of (1) is not to be open to public inspection or search.
(3) Any such information, and any other information which would enable an adopted person to obtain a certified copy of the record of his birth, may only be disclosed by the Registrar General in accordance with this section.
(4) In relation to a person adopted before the appointed day [i.e. 30 December 2005] the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in (3) to a person."
The relevant words for the purposes of this application are "in exceptional circumstances".
The arguments
In summary, the applicant seeks to argue, subject to what follows, that:
(i) The words "in exceptional circumstances" should be construed in the same way as Thorpe J as he then was, construed similar but by no means identical wording in section 50(5) of the 1976 Act. See paragraph 28 below.
(ii) She seeks to establish that her case thus qualifies by that or, indeed, any definition of exceptional. See her statement of 29 December 2009, paragraphs 6 to 12 and see below.
(iii) She further seeks to persuade the court that the exclusion of blood line descendants of an adopted person from those who have greater ease of access to the material she seeks are unfairly discriminated against. See below.
(iv) She raises issues about the practices relevant to applying to the courts which made the adoption, and the tests they are said by her to appear to be applying to disclosures, and how her own father's file having been lost, she is discriminated against by the test of exceptionality applicable to her instant application by virtue of the provisions of section 79(4) of the 2002 Act.
(v) She also raises issues under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 hereinafter referred to as "the convention" substantially but not wholly incorporated into English law by virtue of schedule 1 of the Human Rights Act, 1998.
The Registrar General in the summary argues:
(i) The words "in exceptional circumstances" are clear; they should not be diminished in their force and effect by judicial interpretation.
(ii) This particular case does not qualify as exceptional.
(iii) Insofar as bloodline descendents are not given the same opportunities for access to documents of the relevant type as those statutorily permitted categories, this was no accidental oversight by parliament, that there is no lacuna in the statutory framework, and that it is not open to the courts to alter that statutory framework by interpretation or to remediate the consequences of any perceived unfair lacuna by interpretation of the words "exceptional circumstances". I need not here further set out in extenso the other matters argued by the respondent for I shall deal with them more fully below.
I extend my apologies to both parties at this point if in giving the above summaries, I have not done justice to their respective documents, arguments and felicity of language.
Background
As stated, WC was born on 6 July 1923 and was adopted out of his birth family on 4 May 1927. He died on 6 September 1999.
The applicant was born on 14 December 1947. She married in 1967 and left England to start a new life in South Africa in 1976. The applicant, however, retained strong family ties with the United Kingdom, two of her own children living here.
Little is known by the applicant and WC's surviving family, her own mother having died in May 2003, about his earlier life and his adoptive family, and nothing is known about his birth family. In his lifetime it was not possible to make enquiries of him because of his irascible and forbidding temperament and as far as is known, his own lack of interest for whatever reason, or, indeed, refusal to be interested in, his own past.
All the applicant has relating to her father is the revised birth certificate, a certified copy of the entry in the Adopted Children Register for 1927, and his death certificate. The court where he was adopted (see paragraph 1 above) no longer exists, its files were transferred some 10 years ago to the Gee Street Court on the edge of the City of London, but a search of their archives by the court librarian has proved fruitless, even though tantalisingly other files of the same vintage have been located.
The applicant's reasons
In a number of moving paragraphs of her statement of 29 December she sets out her reasons for seeking the information from the Registrar General. I shall summarise them, although I shall deal with them a little more fully in due course. Turning to section C, page 13, paragraph 6 one finds there, and in succeeding paragraphs up to and including paragraph 12, her view. She would wish, understandably, to know more of her father and in order to achieve that goal must have the information which the Registrar General currently holds. She believes her father suffered from mental health problems which may have been exacerbated by his adoption. She describes how his behaviour impacted on both her and the wider family, that he was a jealous, aggressive and obsessive man with low self-esteem and feelings of inadequacy. He was controlling and wished to be the centre of attention. He readily flew into rage. Substance abuse as it is called, in fact alcohol, killed him he being diagnosed at his death with cirrhosis of the liver. She describes the impact of her behaviour on her childhood, the fear in which she, her sibling and her mother lived, and the shame brought upon the family by the father's behaviour. She hopes that by learning more of his birth circumstances that she would begin the process of what she calls "healing and forgiveness", albeit posthumously. She describes in the final one of those paragraphs namely number 12, her own struggle to overcome the consequences of her father's character, temperament and behaviour, but how there is yet further to go and it is her hope that access to this information will be the key to that journey.
In a number of paragraphs following on she describes what she will do with the information. I turn to section C, page 14, paragraphs 13 to 16. It is only necessary to summarise them but what it amounts to is that she will use the information to spread the net of inquiry further and either on her own or with the assistance of an agency can begin to piece together the background of her father. For instance, she would wish to know why his own mother gave him up, what circumstances forced her to do this, why was he taken in by an elderly couple as his adoptive parents appeared to be, and was he related to them by blood? She would wish to locate any descendents of her birth relatives on her father's side. It would help her, she says and, indeed, her own children understand their roots and identify family resemblance, talents and skills. Finally, in paragraph 16 she says:
"I believe the birth information which I am missing, would restore my sense of identity and belonging. Not knowing who he really was has been a very difficult psychological hurdle for me to overcome."
In due course, I shall turn to a short passage of the written submissions put in by her counsel which elaborates some of these matters.
Further information
In support of her case, she has filed a statement dated 16 December 2009 authored by Mrs Julia Feast. That author, having established her professional qualifications and her post with The British Association for Adoption and Fostering, frequently and commonly known by its acronym BAAF and details of her experience, goes on to set out a number of considerations which she, Mrs Feast, submits should weigh heavily with the court when construing the...
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