Re X (Adopted Child: Access to Court File)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 09 September 2014 |
| Neutral Citation | [2014] EWFC 33 |
| Court | Family Court |
| Docket Number | Case No: 4628/ACR/30 |
| Date | 09 September 2014 |
[2014] EWFC 33
IN THE FAMILY COURT
Sitting at BRISTOL
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: 4628/ACR/30
The Applicant Y (daughter of X) in person
Mr Alex Forbes (instructed by the Official Solicitor) as advocate to the court
Hearing date: 3 July 2014
Sir James Munby, President of the Family Division:
I have before me an application raising a simple question of considerable general importance to which the answer is not at first sight at all clear.
The essential facts are shortly stated. X, as I shall refer to him, was born on 5 November 1929. On 15 January 1930, justices sitting in Somerset in the Petty Sessional Division of Weston-super-Mare made an adoption order in relation to X under the Adoption of Children Act 1926 to a married couple, Mr and Mrs C. Mr and Mrs C are dead. X died in 2011. X's daughter, Y, the applicant before me, seeks access to the original court file, which has been located, and which I have read. Her purpose is to discover more about X's birth mother. Who was she? What part of the country did X come from?
The question, on which almost astonishingly there is no direct authority, is what principles should govern the determination of such an application. More specifically, should Y be allowed access to the court file?
Y has appeared throughout in person. Her original application was by letter dated 5 November 2013 (as she pointed out, her father's birthday) addressed to a member of the family department at Bristol County Court. Having set out all the steps she had taken since her father's death in her quest to obtain the information she was seeking, her letter continues:
"… my Grandmother … is certainly dead by now, so I will not harm anyone by knowing her name I will not be trying to contact her relatives or causing any trouble.
I just want to know who my Dad was, who his mother was, where he was born, and who I am, my sister, my brother, my children and Grandchildren.
We have a child in our family my sister's Granddaughter she has epilepsy and is very disabled, where did that come from, is it likely to happen again.
In a while I will be going to my Father's grave to put flowers as it is his birthday and once again I will wonder who he was, did his Mother ever look for him, if she did she never found him, but I can find her, and put this story to rest once and for all …"
The original adoption file was retrieved from Weston-super-Mare and the papers were put before His Honour Judge Wildblood QC on 27 February 2014. The next day, 28 February 2014, he directed the matter to be listed before him on 25 April 2014. Y attended in person. She indicated that she would obtain advice. Judge Wildblood directed that, subject to my agreement, the application should be listed before me during the week commencing 30 June 2014. On 19 May 2014 Judge Wildblood made a further order listing the matter before me on 3 July 2014.
On 6 June 2014, Judge Wildblood made an order which, after reciting that the court had referred to section 79(4) of the Adoption and Children Act 2002 (see below) and to FL v Registrar General [2010] EWHC 3520 (Fam), contained three provisions which I should mention. First, the order directed that in addition to her request to inspect the documents held on the court file, Y was deemed to have applied for an order under section 79(4). Second, it provided that notice of the application was to be given to the Registrar General in accordance with rule 19.2 of the Family Procedure Rules 2010. Third, it invited the Official Solicitor to identify an amicus curiae (advocate to the court).
Having taken legal advice, and understandably been advised that she would need to instruct counsel, Y wrote to the court that, having deliberated long and hard, she felt she had no alternative but to represent herself, as she was unable to pay the costs involved. Happily, however, the Official Solicitor agreed to appoint an advocate to the court and instructed Mr Alex Forbes.
On 23 June 2014 the Official Solicitor received an email from the Registrar General which observed that usually an application under section 79(4) was made only where the court records were not available, which drew attention to proposed changes in the law, 1 and which concluded:
"Hence we are not looking to object to an order under 79(4) if the Court deemed it appropriate."
The email indicated that it was unlikely to be necessary for there to be any attendance at the hearing on the part of the Registrar General.
Y supplemented her letter of 5 November 2013, with a statement dated 21 June 2014. She sets out further details of Mr and Mrs C's family, and describes how, some years later, they adopted a girl, Z, who was in fact the daughter of Mrs C's sister and her (the sister's) husband. Z is now dead. Y says that she has always believed that X was in some way related to Z and speculates that perhaps another of Mrs C's siblings was X's mother. Her statement suggests that, if given the information she seeks, Y would try to make contact with X's birth relatives, for she says "If I were to be successful I would be happy to have an intermediary to make contact with birth relatives."
It was in these circumstances that the matter came on for hearing before me on 3 July 2014. Y appeared in person. Mr Forbes appeared as advocate to the court. He had lodged detailed and most helpful written submissions. He was also able to supply me with a copy of the skeleton argument which Mr Stewart Leech (now QC) had prepared, as counsel for the Registrar General, for the hearing before Roderic Wood J in 2010 of FL v Registrar General [2010] EWHC 3520 (Fam), [2011] 2 FLR 630. I am grateful to Mr Forbes, as I am sure Y is also, for his great assistance in illuminating a surprisingly complex area of law and for his balanced and measured submissions.
The original court file contains the following documents:
i) The application of Mr and Mrs C to adopt X dated 1 January 1930. The application set out the name and address of X's mother and shows that X was by then living with Mr and Mrs C.
ii) The birth mother's signed consent to X's adoption dated 12 December 1929. This gives her name and address, as well as the names and address of Mr and Mrs C. Her signature was witnessed by her mother, whose address is also given.
iii) X's birth certificate. This gives X's names and the place where he was born, and his mother's name, employment and address (she was the Informant, registering his birth on 12 December 1929). The spaces for details of X's father are blank. The court file also includes a short form birth certificate for X.
iv) Notice from the court dated 2 January 1930 of the hearing on 15 January 1930.
v) A report by the County Education Secretary dated 11 January 1930, following the necessary enquiries in connection with the proposed adoption made by the County Education Office's School Attendance Officer, reporting amongst other things that "The means and status of the applicants are such as to enable them to maintain and bring up the infant suitably" and that "It is not considered necessary that the Court should be asked to … impose any particular terms or conditions" in making an adoption order. The report also stated that the School Attendance Officer had been instructed to attend the hearing "for the purpose of giving any additional information which may be required of him."
vi) The adoption order made on 15 January 1930.
vii) Letters dated 17 and 23 January 1930 from the General Register Office to the Clerk to the Justices in relation to the registration of the adoption in the Adopted Children Register. (A copy of the certificate obtained by Y in 1989 shows that the relevant entry in the Register was made on 21 January 1930.)
viii) A letter which appears from its contents to have been written to Mrs C (by name) in December 1929 by X's mother's mother.
There are no other documents in the court file and nothing of significance beyond what I have already noted. There is nothing to indicate why X was adopted (beyond the assumption that, because his father was not identified on his birth certificate, his parents were not married). There is nothing in the court file likely to cause Y any distress. It is apparent that X's birth mother, and her mother, knew the names and address of Mr and Mrs C, and that Mr and Mrs C knew the name and address of X's birth mother.
It follows from this, that the only significant information Y would obtain if given access to the court file is (a) the name, address and occupation of X's birth mother (and the name and address of her mother) and (b) the letter from X's grandmother.
I turn to the law.
A variety of statutory regimes apply to the disclosure of adoption records and, more generally, of information relating to adoptions and adoption proceedings. These regimes differ depending upon who is seeking disclosure, who disclosure is being sought from and when the adoption order was made. There is no need for me to embark upon even the most summary analysis. For present purposes it suffices to note that the adopted person has a right, on request, to receive certain specified information from the adoption agency in accordance with section 60(2) of the Adoption and Children Act 2002, from the court in accordance with section 60(4) of the 2002 Act, rule 14.18 of the Family Procedure Rules 2010 and PD14F and more generally in accordance with regulations made pursuant to sections 9 and 98 of the 2002 Act.
Where, as in the instant case, the person is a descendant of the adopted person, there are, at present, 2 only two statutory routes available. One is in accordance with section 79(4) of the 2002 Act. So far as is material for present purposes, section 79...
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