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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 11. Tracing and Access to Adoption Records
This is a specialised type of adoption support, and entitlement to these services and which authority/agency is responsible for providing them are subject to the general issues discussed in Chapter 10.
There are three groups of people with an interest in tracing others and/or accessing records of adoptions. They are:
- (1) adults and children who have been adopted - adoptees;
- (2) birth parents and other birth relatives of adoptees;
- (3) other relatives of adoptees, such as their spouses, children or adoptive parents, particularly when the adopted person has died or otherwise cannot or perhaps will not exercise rights to information.
These groups have different interests and perspectives, and their rights to access information are different. However, there are some general provisions which are helpful to them all, albeit in different degrees, in obtaining advice on tracing, even where there is no right to information on a specific adoption.
- The 1978 Act obliges local authorities to have an adoption service, to meet the needs of 'children who have been or may be adopted'; 'parents and guardians of such children'; 'and persons who have adopted or may adopt a child', s.1(1)(a)-(c).
- Part of that service includes 'counselling and assistance….to children who have been adopted and to persons who have adopted a child', s.1(2)(bb); and counselling only 'for other persons if they have problems relating to adoption.', s.1(2)(c).
- Every adoption agency has discretion under reg.24(2)(a) of the 1996 Regs to give access to its records and information as it sees fit 'for the purposes of carrying out its functions as an adoption agency'.
These provisions can allow varying degrees of help and support, including advice on tracing, to all of the groups mentioned above, although the emphasis is on adoptees, adopters and, to a lesser extent, birth parents. Some agencies provide more support about these issues than others do. Some provide comprehensive mediation services for anyone seeking support. Some services are called intermediary ones, and this is reflected in the DoH's 2000 publication for birth family support in this matter: Intermediary Services for Birth Relatives: Practice Guidelines.
As well as these rights, individuals can approach the adoption contact registers. If the adoption order was made in Scotland, they can put their names on the Adoption Contact Register run by Birthlink, which is a non-statutory register. If the adoption was granted in England and Wales, there is a statutory register, and also an older, non-statutory Contact Register, run by Norcap. All these Contact Registers (whether statutory or not) allow adoptees and birth relatives to indicate that they want to establish contact. When there is a 'match', some sort of contact can be established, though it may be through agency professionals.
There are also two other provisions which theoretically are open to everyone in the process, although they are rarely if ever used.
- The Registrar General is obliged to ensure that traceable connections can be made between entries in the Adopted Children Register and entries in the registers of birth which have been marked 'Adopted', s.45(4) of the 1978 Act. Such information is automatically open only to adoptees who are 16 or over, or agencies etc. providing counselling to them, except with a court order, s.45(5). So someone else could apply for information, but there is no reported case of any such order being granted in Scotland.
- Court rules allow an adoption process to be opened up by court order on the application of 'any person', RCS. 1994 r.67.32(2)(e); or the application of 'a person….to the sheriff setting forth the reasons for which access to the process is required', AS 1997 r.2.33(2)(c). The sheriff court provision was used in the recent case of McCreight v City of Edinburgh Council and Another 2003 FamL.R. 2, when the adopters' names were ordered to be disclosed to M to enable her to pursue her application for contact to her grandchildren. That decision was appealed.
So far as rights to information are concerned, there are different rights for different groups.
(1) Adult adoptees have positive rights to information about themselves and their adoptions. The situation is different as between Scotland, and England and Wales, and what matters is where the order was granted, not where the adoptee lives. When adoption was granted in Scotland, adoptees who are 16 or over can:
- obtain a copy of their original birth certificate - s.45(5) of the 1978 Act;
- have full sight of their court papers in any sheriff court freeing or adoption - r.2.14(2)(a) and r.2.33(2)(a) of AS 1997; and any Court of Session adoption - RCS.67.32(2)(a);
- ask to see all their agency records - reg.25 of the 1996 Regs.
The first two rights are unqualified, but the last one is subject to the agency's discretion. All this information can be obtained without counselling, although adoptees should be advised that this is available, and may seek it if they wish.
Where adoptees are under 16, they have no automatic rights. But, it can be argued that adoption agencies should give information in appropriate circumstances, given the terms of s.1(1)(a) and (2)(bb) of the 1978 Act and reg.24(2)(a) of the 1996 Regs, mentioned above. If it is important for an adopted child to have information, these provisions should allow its release as part of the agency's functions under s.1 of the 1978 Act and its powers in reg.24(2)(a), while recognising the need to involve the adoptive parents.
When the adoption was granted in England or Wales, the relevant age is 18 and there is no automatic right to see court papers, only a right to ask to see them. Some judges are keen to allow access, others are not. Otherwise, the adoptee can obtain her or his original birth certificate and ask to see the adoption agency records.
(2) Birth parents and other birth relatives have no right to information about adoptees. However, there are some provisions which can assist them:
- Birth parents (but not other birth relatives) have a right to an adoption service in terms of s.1(1)(b) and (2)(c) above.
- The discretion to adoption agencies, in reg. 24(2)(a) of 1996 Regs above, allows agencies to provide information from their records. This ties in with the duties under s.1 above but could be of assistance to all birth relatives, not just birth parents;
- Agencies are not prohibited from giving out general information to or working with any birth relatives. Many agencies do work positively with birth relatives.
- If birth relatives want to try to trace an adoptee, they can put their names on one or more of the adoption contact registers mentioned above. All these contact registers, whether statutory or not, allow birth relatives as well as adoptees to indicate that they want to establish contact. When there is a 'Match', some sort of contact can be established, though it may be through agency professionals.
- For birth families generally, the DoH's practice guidelines promote good practice and greater uniformity in service provision for birth relatives: Intermediary Services for Birth Relatives: Practice Guidelines, 2000. These are comprehensive guidelines and while they were issued for England and Wales, they are very useful and indicative of good practice in this difficult area.
(3) Other relatives of adoptees are in a similar position to birth relatives and do not have any specific rights to information about adoptees and their adoptions. This group includes the spouses, children or adopted parents of adoptees, and the issue arises particularly where the adoptee has died or otherwise cannot or will not exercise her or his rights to information. Again, the provisions in s.1(2)(c) and reg.24(2)(a) could assist, and agencies and authorities are not prohibited from working with this group or providing general information.
Overall issues which could usefully be considered are:
- how to rationalise the various rights and duties;
- whether to give limited rights to information to birth family members, including birth parents;
- if so, whether to give an absolute right of veto to the adoptee in all cases;
- whether to give limited rights to information to others mentioned in (3) above.
Alongside the mesh of rights and duties, service provision in this area, for adoptees, birth relatives who want to trace and others is patchy throughout the U.K. Some local authorities contract with the voluntary sector to provide practical advice and counselling, others do not.
Overall, there is limited professional and public knowledge of these issues, the rights of different individuals, and how to help and support enquirers, whoever they are. However, this is an area in which the Adoption Support Network for Scotland recommended in the Report for Phase I, Chapter 3, Recommendation 8, could provide assistance.
QUESTIONS:
36. Should After-Adoption mediation and tracing services have a greater profile, with greater publicity for agencies and the public, including use of the DH Guidance?
37. Should there be a licensing of information and intermediate service provision, allowing organisations other than local authorities and adoption agencies to work in this area?
38. Should there be positive rights to information for birth relatives, while protecting the rights of adoptees?
39. Should there be positive rights to information for other parties, while protecting the rights of adoptees?
40. How could adoptees' rights best be protected?
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