FL v Registrar General
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Year | 2011 |
| Court | Family Division |
Adoption – Confidential information – Disclosure – Descendants of adopted person falling outside structures available to statutorily defined birth relatives in gaining access to information about adopted person – Child of deceased adopted person seeking disclosure of father’s birth information from Registrar General – Whether statutory lacuna existing – Whether exceptional circumstances existing such as to permit disclosure to descendant – Adoption and Children Act 2002, ss 79(4), 98.
The applicant sought the disclosure of information from the Registrar General which would enable her to begin the process of finding out more about the birth family of her deceased father, WC, who had been adopted in 1927. She claimed that it had not been possible to make inquiries of him during his lifetime because of his irascible and forbidding temperament and his own lack of interest in his past. All she had in relation to WC was his revised birth certificate, a certified copy of the entry in the Adopted Children Register for 1927, and his death certificate. Her reasons for seeking the information included that she wished to know more about her father, believing that such knowledge would restore her sense of identity and belonging. She claimed that he had suffered from mental health issues (potentially exacerbated by his adoption) and substance abuse problems, which had negatively affected her life; she hoped that learning more about his birth circumstances would help her to begin a process of ‘healing and forgiveness’, albeit posthumously. She also wished to track his birth family’s history in order to see if the alleged mental illness was hereditary, leaving her and her brothers at risk of such problems. In that regard, she referred to WC having been admitted to hospital following an assessment under the Mental Health Act 1983, but was unable to offer further details. Although s 79(4) of the Adoption and Children Act 2002 provided that ‘… the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in subsection (3) to a person’, s 98 of that Act did not include descendants of an adopted person within the statutory definition of birth relatives and they fell outside the structures available to such statutorily defined birth relatives in gaining access to information about the adopted person. The applicant argued, inter alia, that the exclusion of blood line descendants of an adopted person from those who had greater ease of access to the material which she sought meant that they
were unfairly discriminated against. She, in effect, invited the court to find that there was a lacuna in the statutory framework and to interpret the provisions more favourably in respect of that statutorily excluded group. The Registrar General contended, inter alia, that the words ‘in exceptional circumstances’ were clear; that the instant case did not qualify as exceptional; and that, insofar as blood line descendants were not given the same opportunities for access to documents of the relevant type as those statutorily permitted categories, that was no accidental oversight by Parliament and it was not open to the courts to alter the statutory framework by interpretation.
Held – (1) It was necessary to reject the applicant’s suggestion that it was open to the court to approach the issue as if she (and those in a similar position) should rightly have the opportunities granted to the defined categories, and that s 79(4) of the 2002 Act should be considered on the basis that such an applicant should be viewed more favourably in construing the expression ‘exceptional circumstances’ than would be the case for complete strangers. It was not for the court to re-write the plain words of s 98 of the 2002 Act so as to include certain excluded categories of people. It was similarly inappropriate to approach the issue as if it were some parliamentary oversight and to make allowance for that omission. Such was pre-eminently a matter for Parliament and, until Parliament addressed the issue (if it ever chose to do so), it was necessary to continue to recognise that, for whatever reason, Parliament had intentionally left the descendants of an adopted person out of the definition which, had they been included, would have afforded them different rights and different routes to obtaining information (see [26]–[27], below).
(2) In deciding whether it was appropriate for the court, in exercising its discretion, to find that the matters put forward by the applicant were exceptional, the issues had to be looked at objectively and in the context of the wider public interest. It was not only necessary to consider the issue of maintaining the confidentiality under which the information was originally supplied, but also the interests of society and protecting the rights of potential third parties who might well be profoundly affected in due course by such disclosure. In the instant case, the applicant’s wish to know more about her father, although entirely understandable, was nothing out of the ordinary; it applied to any curious human being anxious to understand their forbearers and the effect those forbearers had in shaping their own genetic inheritance, possibly character and development. The examples of WC’s egregious behaviour given by the applicant, whilst profoundly shocking to the individuals concerned, did not fall within the category of exceptional. Furthermore, no evidence had been put forward to suggest that the applicant or any other member of her family had ever suffered from any mental health illness, and there was no detailed evidence of engagement with the mental health services. Viewed objectively, the unspecified mental health difficulties of the applicant’s father did not fall within the category of
exceptional; a statistically significant percentage of the population would, at one time or another in their adult lives, encounter the mental health services, either first-hand as patients or second-hand, being associated with such a patient. Accordingly, the application would be dismissed (see [56]–[59], below).
Cases referred to in judgmentAssociated Newspapers Ltd v Wilson [1995] 2 WLR 354, HL.
D v Registrar General[1996] 2 FCR 248, [1996] 1 FLR 707; affd[1997] 2 FCR 240, [1998] Fam 19, [1997] 2 WLR 739, [1997] 1 FLR 715, CA.
Gaskin Case, The [1990] 1 FLR 167, ECt HR.
Gunn-Russo v Nugent Care Society [2001] EWHC Admin 566, [2002] 1 FLR 1.
H (Adoption: Disclosure of Information), Re[1995] 1 FCR 546, [1995] 1 FLR 236.
Macarthys Ltd v Smith [1979] 3 All ER 325, [1979] 1 WLR 1189, CA.
McCormick v Horsepower Ltd [1981] 2 All ER 746, [1981] 1 WLR 993, CA.
Mikulic v Croatia[2002] 1 FCR 720, ECt HR.
Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593, [1992] 3 WLR 1032, HL.
Pinner v Everett [1969] 3 All ER 257, [1969] 1 WLR 1266, HL.
R v Bentham[2005] UKHL 18, [2005] 2 All ER 65, [2005] 1 WLR 1057.
ApplicationThe applicant (FKL), the adult child of a deceased adoptee (WC), sought the disclosure of information from the Registrar General which would enable her to begin the process of finding out more about the birth family of WC, who had been adopted in 1927. An issue arose as to the correct construction of s 79(4) of the Adoption and Children Act 2002. The facts are set out in the judgment of Roderic Wood J.
David Vavrecka (instructed by McMillan Williams) for the applicant.
Stewart Leech and William Tyzack (for judgment only) (instructed by Treasury Solicitors) for the respondent.
24 May 2010. The following judgment was delivered.
RODERIC WOOD J. The application[1] 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.
[2] 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.
[3] The application is issued pursuant to r 105(1)(b) of the Family Procedure (Adoption) Rules 2005, SI 2005/2795. It involves a point of construction in relation to s 79(4) of the Adoption and Children Act 2002, hereinafter referred to as ‘the 2002 Act’.
[4] Although similar territory has been traversed in relation to the statutory predecessor of the 2002 Act, namely in relation to s 50(5) of the Adoption Act 1976, hereinafter referred to as ‘the 1976 Act’, it is thought that there is no reported case on s 79(4) of the 2002 Act.
[5] 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[6] 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 subsection (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 [ie 30 December 2005] the court may, in exceptional circumstances, order the Registrar General to give any information mentioned in subsection (3) to a person.’
The relevant words for the purposes of this application are ‘in exceptional circumstances’.
The arguments[7] 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 s 50(5) of the 1976 Act. See [28], below.
(ii) She seeks to establish that her...
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