Gunn-Russo v Nugent Care Society and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 20 July 2001 |
| Neutral Citation | [2001] EWHC 566 (Admin) |
| Docket Number | Case No: CO/4370/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2001 |
[2001] EWHC 566 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Scott Baker
Case No: CO/4370/2000
Mr Thomas de la Mare (instructed by Liberty for the Claimant)
Mr David Vavrecka (instructed by White and Sherwin for the 1 st Defendant) and
Mr Rabinder Singh (instructed by Solicitor to the Department of Health for the 2 nd Defendant)
This case raises issues about the disclosure of adoption records by a voluntary adoption agency. The Claimant, now in her fifties, was adopted as a child at the age of two. The First Defendant, Nugent Care Society (NCS), were formerly known as the Liverpool Catholic Children's Protection Society and are the voluntary adoption agency that handled her adoption. The Second Defendant is the Secretary of State for Health and is responsible for the regulation of voluntary adoption agencies and the formation of adoption policy.
The Facts
For a number of years the Claimant has been trying to obtain information about her adoption and related matters. Through her persistence she has been able to ascertain a lot of information about her past, but there remains some material that the NCS will not let her have. She seeks judicial review (i) of the NCS's decision of 3 December 1999, notified on 8 December 1999, refusing access to her adoption records, (ii) of the Secretary of State's decision of 30 August 2000 refusing to compel the NCS to disclose the records and (iii) of the continuing refusal or failure of both in the light of the Human Rights Act 1998.
The Claimant was adopted in 1948. She discovered the identity of her birth parents in the 1970s, met her birth mother in 1976 and was in regular contact with her until her death in 1989. She was her birth mother's only child. Her genetic father, who was in the United Kingdom as an American serviceman but had returned to the United States of America, died in 1987, before she located him. However she had made contact with two half sisters on her father's side. One is older than the Claimant, the other younger. The older one supports the Claimant's efforts to obtain full information about her birth. The younger one was born long after the period covered by the relevant records. Both live in the United States of America.
The Claimant's adoptive father died in 1970 and her adoptive mother in 1989. It is difficult to see how any third party could now be adversely affected by disclosure of any of the information sought. That information amounts to the complete records held by the NCS relating (i) to her adoption and (ii) to their dealings with her birth and adoptive parents in so far as such records relate specifically to her. She feels, and I accept that this is a view shared by many other people who have been adopted, that these records form an important component in her quest to understand her childhood and thereby complete her personal identity and self perception.
The Claimant has approached the NCS on various occasions for the provision of information. Most recently she started correspondence in 1997 with a view to obtaining the outstanding records, and I should emphasise that she has obtained a good deal of material over the years but not everything. It is the outstanding remainder that gives rise to this litigation. There is no doubt that the Claimant has had a long struggle to obtain all the information that she has now pieced together. Initially she did not even know about the NCS's role in her adoption. She found out about them because she went to the Liverpool city library in 1970 to ask about catholic adoption societies in the area. In the early 1970s there was no right to trace birth parents or, if traced, identify information about them. That has of course changed following Section 25 of the Children Act 197The Claimant obtained a copy of her birth certificate from the Registrar of Births, Marriages and Deaths in October 1998 having a year earlier obtained from the Bootle County Court copies of the court records relating to her adoption. However, she remained very keen to reconstruct the history of the first two years of her life. She said that it struck her the only way she could do this was from the records kept by the NCS which she believes contain, amongst other things, contemporaneous notes of interviews and meetings with her birth and adoptive parents, letters between the NCS and her adoptive parents and photographs. Obtaining all these would help her to understand more precisely what happened.
The Claimant telephoned the NCS in 1997 to try and find out about the missing two years. By this time both her natural parents and her adoptive parents were dead, as was her father's wife. The nearest surviving relatives were, and still are, two younger sisters of her birth mother and two half sisters of her genetic father, who live in the United States. The NCS's response was in their letter of 1 April 1997 enclosing a couple of documents they felt she might not have and adding:
“As this is an adoption file, open access is not possible, but you have copies of all the relevant documents that would be possible to pass to you.”
The writer concluded by suggesting an interview or group sessions with trained counsellors.
The Claimant did not give up. In August 1997 she met Mrs Hennessy at the NCS. Mrs Hennessy showed her a few documents but said she couldn't show her anything else. The Claimant asked to take copies but the request was refused. There followed a letter from NCS which said:
“The current legislation enables an adoption agency to give adoptees information directly related to themselves. On your last visit Mrs Hennessy showed you the file with information relating to your origins. Other parts of the file relate to your adopters and these we cannot disclose to you, although I am aware in the past this has happened.
The procedure we follow at present is covered by legislation and we are regularly inspected by the Department of Health. We are not able to give out the original file, as we need to keep it for 75 years.”
The Claimant's efforts continued and in July 1999 the NCS's Acting Assistant Director (Operations) offered her a meeting to “help towards resolving any issues which you would wish to raise with us.” The Claimant made it clear she wanted to view her file. She was told this could not include her adopters' or birth parents' files. On 19 August 1999 she wrote to the NCS enclosing a letter to be presented to the Board of Governors at its next meeting. At that time she was asking for “the ownership of her complete and original file, including all third party information.” She has, however, not pursued the claim to ownership, which could not possibly succeed. The letter in response on 26 August 1999 said:
“I do understand your wish to have in your possession your file and the file of your adopters and birth parents. Our policy is based on the premise that there are a number of parties to an adoption including an adoptee, the natural mother, the adopters. We have a responsibility to consider the rights of all of these and achieve a balance.
Your request that the Governing Body of the Society reconsider its position is noted and your letter will be presented. The Governing Body will wish to have the advice of its Operational Services Committee, which is responsible for adoption policy. I have asked Miss Murdoch for a report to be presented to the next Operational Services Committee on 14 November and to the Governing Body on 3 December.”
Not surprisingly, in view of the contents of that letter, the Claimant wrote to its author, Mr Kennedy, pointing out that he did not appear to have understood her case. She reiterated that her birth parents and adoptive parents were dead and that there were no surviving close relatives to be considered. She said:
“It is this specific point on which I am basing my request for a change in policy re access to files, or if not a change in policy then an amendment to the guidelines, which will allow the Society to exercise its discretionary powers in cases, of which mine is a prime example, where certain criteria are no longer pertinent, and where fixed guidelines therefore become redundant.”
The written submission to the Governors is to be found at p.253 of the bundle of documents and it is unnecessary to repeat it here. It succinctly sets out her case and refers to the NCS's discretionary power in Regulation 15(2)(a) of the Adoption Agencies Regulations 1983 (as amended). It also refers, with some feeling, to the obstacles she has encountered with the NCS.
The position of the NCS is made abundantly clear in a press statement of 8 July 1999 and a letter from Mr Kennedy to Mr David Sumberg M.E.P. dated 16 November 1999. Whilst assisting an adoptee as far as they are able, they recognise the needs of all parties who have shared information with them on the understanding that it would not be disclosed. Confidential information remains confidential regardless of the passage of time or the death of the person concerned.
The Board of Governors met on 3 December 1999 and the decision letter was written on 8 December 1999. Before the Board met the Operational Services Committee had met on 4 October 1999 and considered a report on access to birth records by adopted people written by Miss Murdoch, a principal officer. It was of course the Claimant's request for information that precipitated this action. The report is short and is notable for its failure (i) to examine in any depth whether the...
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