R v Registrar General, ex parte Smith
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE STAUGHTON,LORD JUSTICE McCOWAN |
| Judgment Date | 01 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1101-8 |
| Docket Number | 90/0965 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 1990 |
[1990] EWCA Civ J1101-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(Lord Justice Watkins)
Royal Courts of Justice,
The President
Lord Justice Staughton
and
Lord Justice Mccowan
90/0965
No: QBDCFO 190/90
MR R. GORDON (instructed by Messrs. Donnelly & Elliott, Gosport, Hampshire) appeared on behalf of the Appellant.
MR J. LAWS and MR N. PLEMING (instructed by the Treasury Solicitor) appeared as amicus curiae.
( )
This is an appeal from the decision of the Divisional Court of the Queen's Bench Division of 30th November 1989. The court refused to grant an application by the appellant for judicial review of the refusal of the Registrar General to provide him with the information necessary to enable him to obtain a certified copy of the record of his birth and/or to provide counselling prior thereto.
The facts are stark and disturbing. The appellant is now 31 years of age. He was adopted as a baby when only nine weeks old. He has no knowledge of his natural parents. He had a disturbed childhood and from the age of 11 onward, boarded at a school for maladjusted boys and thereafter spent most of his time in institutions. In 1977, whilst he was serving a sentence of Borstal Training, he absconded and killed a total stranger whom he had met in a park. It was a particularly callous and impulsive act, the motive for which remains unexplained. He was convicted of murder and sentenced to life imprisonment.
In June 1979 the appellant was serving his sentence in Wormwood Scrubs and sharing a cell with another prisoner with whom he apparently got on well. According to his statement, on the night of the offence, he woke up in his bed and thought he saw his foster mother in the corner of his cell. It was in fact his fellow prisoner. He said that in a dazed state he got out of bed and punched her, tied her hands and feet with some string, tried to stab her with a screwdriver and then strangled her with the sleeve of his shirt. He informed the prison staff and the man was found to be dead.
He was tried again for murder at the Central Criminal Court and on 28th January 1980 was convicted of manslaughter on the basis of diminished responsibility. He was transferred to Broadmoor on 22nd February 1980 and has remained there ever since. He is now detained there under the provisions of sections 47 to 49 of the Mental Health Act 1983. Any decision in the future as to his release into the community will be the responsibility of the Home Secretary made no doubt in the light of any recommendation of the parole board. The appellant is not a person who is at present under any legal disability. He is, however, seriously disturbed and unstable and is considered to suffer from recurrent bouts of psychotic illness.
In March 1987 he instructed solicitors to apply on his behalf to the Registrar General under the provisions of section 26 of the Children Act 1975 (now section 51 of the Adoption Act 1976) for access to his birth records. The application was made on the prescribed form on 25th March 1987 (see page 14 of the agreed bundle of documents before the court).
It was duly acknowledged. The application form disclosed his address as being Broadmoor Hospital. Thereafter, despite requests for expedition and reminders from the appellant's solicitors, considerable delays ensued.
In February 1988 the Registrar General's office informed the applicant's solicitors that the Registrar was obtaining an independent medical report on the applicant. Eventually by a letter dated 28th October 1988 (see page 28 of the bundle), the Registrar stated that she had decided that:
"…she will not provide Mr Smith with the information necessary to enable him to obtain a certified copy of the record of his birth. The decision is based on public policy grounds in the light of the medical and social reports available."
The letter also stated that the Registrar had received counsel's opinion.
It appears that there were available to the Registrar two medical reports, one from Dr Tidmarsh, a consultant psychiatrist at Broadmoor Hospital, and an independent report from Dr Robert Dolan, also a consultant psychiatrist. Dr Tidmarsh's report is to be found at pages 68 to 70 and Dr Dolan's at pages 71 to 73 of the bundle. In his report Dr Tidmarsh noted that the appellant had already killed twice and said:
"I cannot tell how he will react to information about his biological mother but he may well feel that she was responsible for the fact that he was adopted in the first place. I believe that there is a distinct possibility that he will react emotionally to this knowledge and that his natural mother could attract some of the hostility he has for years directed towards his adopted mother. If this does occur his psychopathic instability and tendency to psychotic breakdown suggests to me he might not be able to control this hostility and that his natural mother might be at some risk from him."
Dr Dolan an expressed the opinion that he did not think the appellant had any sinister motive in making his enquiry but added:
"However, there must remain the possibility that, if he were again in the community, he would abuse illicit drugs. Together with this he may well be likely to suffer from further bouts of psychotic illness. In the event of his mental state again being abnormal, it could well be that his natural mother might be in some danger from him."
Section 51 of the Adoption Act 1976 provides by subsection (1):
"Subject to subsections (4) and (6), the Registrar General shall on an application made in the prescribed manner by an adopted person a record of whose birth is kept by the Registrar General and who has attained the age of 18 years supply to that person on payment of the prescribed fee (if any) such information as is necessary to enable that person to obtain a certified copy of the record of his birth."
In subsection (7) it is provided that "prescribed" means prescribed by regulations made by the Registrar General.
Subsection (4) provides:
"Before supplying any information to an applicant under subsection (1) the Registrar General shall inform the applicant that counselling services are available to him—
(a) at the General Register Office; or
(b) from the local authority for the area where the applicant is at the time the application is made; or
(c) from the local authority for the area where the court sat which made the adoption order relating to the applicant; or
(d) if the applicant's adoption was arranged by an adoption society which is approved under section 3 of this Act or under section 4 of the Children Act 1975, from that society."
Subsection (5) provides:
"If the applicant chooses to receive counselling from a local authority or an adoption society under subsection (4) the Registrar General shall send to the authority or society of the applicant's choice the information to which the applicant is entitled under subsection (1)."
Subsection (6) provides:
"The Registrar General shall not supply a person who was adopted before 12th November 1975 with any information under subsection (1) unless that person has attended an interview with a counsellor either at the General Register Office or in pursuance of arrangements made by the local authority or adoption society from whom the applicant is entitled to receive counselling in accordance with subsection (4)."
The Divisional Court rejected the appellant's case that the section provided an absolute entitlement to the disclosure of the relevant information once the necessary counseling step had been taken. In delivering the leading judgment of the Divisional Court, Watkins L.J. said:
"Persuasively presented though Mr Gordon's submissions were, we are convinced that Mr Laws (amicus curiae) is correct. We do not see any essential difference between a claimed entitlement to an absolute statutory right based on past criminality and a claim to that same statutory right when there is a real risk that if the right is conferred it may be used for future criminality.
In our very firm view, having regard to the potential menace to the safety in the future of the natural mother of the appellant and possibly others related to him by blood or otherwise, a public policy consideration positively demands that we refuse to grant the relief sought by the appellant."
He then added:
"It is, we think, beyond belief that Parliament contemplated that an adopted child's right to obtain a birth certificate should be absolute come what may."
Before this court Mr Gordon, on behalf "of the appellant, has submitted, as he did to the Divisional Court, that section 51 establishes a clear statutory entitlement to the relevant information and/or to counselling and that there is no indication that the obligation placed by the statute upon the Registrar is qualified in any way by recourse to considerations of public policy.
Secondly, he argued that even if it is so qualified, there is no head of public policy which would limit the Registrar's obligations under the statute where she perceives a risk that the information might be used for future criminality. He further argued that even if there should be such a head of public policy, it did not exist at the time of the passing of Adoption Act 1976.
Counsel also advanced as an alternative argument the proposition that the Divisional Court erred in failing to recognize a distinction between the provision for counselling and the provision for providing information.
He argued further...
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