3.4.13 Access to Birth Records/Adoption Case Records
Section 6, Access by Others to Adoption Case Records of this chapter was revised in October 2011 to include the circumstances in which an Independent Review Panel to access these records.
- All Cases - Provision of Counselling
- Access to Birth Records
- Access by Adopted Persons to Adoption Case Records
- Access by Birth Relatives to Adoption Case Records
- Access by Adopters to Adoption Case Records
- Access by Others to Adoption Case Records
In all cases where an application or request is dealt with under this procedure, the allocated social worker must provide written information about the availability of counselling to the applicant and to the subject, including information about agencies that provide counselling in the relevant area and any fees which may apply.
Where the applicant indicates a wish to receive counselling, the allocated social worker must ensure that the person receives the counselling, which may be through another agency. Where another agency is used, the allocated social worker should ensure that the counsellor will have the necessary skills and experience.
Where a referral is made to another agency for counselling to be provided, the allocated social worker should provide the agency carrying out the counselling with sufficient information about the applicant and/or the subject to enable the counselling to be beneficial.
Adopted people aged 18 or over can apply for access to and a copy of their birth certificate. The procedure for dealing with any such application will differ depending on whether the Adoption Order was made before or after 30 December 2005.
2.1 Adoption Orders Made Before 30 December 2005
When a caller enquires about access to birth records, the caller should be referred to the Adoption Service.
If it is established that the caller was adopted and that the borough was involved in arranging the adoption or that the caller is a resident of the borough, the enquiry can be pursued. In the event that the borough was involved in arranging the adoption but the adopted adult lives a considerable distance away, it will for the borough to determine whether to refer the adopted adult to an agency closer to where he or she lives. In other cases, the caller should be advised to re-direct his or her enquiry to the appropriate agency.
Where an enquiry is accepted, counselling will be offered in accordance with Section 1, All Cases - Provision of Counselling.
The Adoption Service will advise enquirers to write to the General Register Office (Adoption Section), Postal Applications, Smedley Hydro, Trafalgar Road, Southport PR8 2HH, to ask for an application form.
On receipt of the relevant papers containing the linking information from the General Register Office, the Head of Service, Adoption Fostering & Access to Resources will allocate the case to an adoption social worker, who will contact the adopted person to invite him or her to attend an office interview within 2 months.
At the interview, the adoption social worker will ask for proof of the identity of the adopted person to ensure confidentiality, for example a passport or driving licence, before providing any information.
The adoption social worker should share the information provided by the General Register Office on the Information Sheet. The adoption social worker should also give the adopted person the application form (CA5) to obtain a copy of his or her birth certificate.
Where issues of concern have arisen at the counselling interview, for example in relation to the adopted person's instability, the adoption social worker should alert the General Register Office.
The adopted person should be advised about the Adoption Contact Register, the right to seek access to their Adoption Case Record (see Section 3, Access by Adopted Persons to Adoption Case Records) and, for those who wish for help in tracing members of their birth family, the availability of Intermediary Services - see Intermediary Services Procedure.
He or she should also be advised where appropriate about the right to register an absolute or qualified Veto on their Adoption Case Record - see Intermediary Services Procedure and informed of any other relevant agencies offering support.
2.2 Adoption Orders Made on or After 30 December 2005
When a caller enquires about access to birth records, the caller should be referred to the Adoption Service.
If it is established that the caller was adopted and that the borough was involved in arranging the adoption or that the caller is a resident of the borough, the Head of Service, Adoption Fostering & Access to Resources will allocate the case, subject to the following. In the event that the borough was involved in arranging the adoption but the adopted adult lives a considerable distance away, it will for the borough to determine whether to refer the adopted adult to an agency closer to where he or she lives. Where the case is allocated, the adoption social worker will arrange for an initial interview to take place.
At the initial interview, the adoption social worker will ask for proof of the identity of the adopted person to ensure confidentiality, for example a passport or driving licence, before providing any information.
For those adopted persons who confirm their wish to obtain a copy of their original birth certificate, they should be given the appropriate information to enable them to complete the application form to obtain a copy of their birth certificate. Where the requisite information is not held by the borough, the adoption social worker should seek the information from the General Register Office on the adopted person's behalf.
Adopted persons should be advised of their right to have a copy of the Child's Permanence Report.
For those who wish to trace members of their birth family, they should be advised of the various courses of action they can take - see Section 3, Access by Adopted Persons to Adoption Case Records.
The social worker should continue to offer support and advice to the adopted person for as long as he or she needs it and will also inform him or her of any other relevant agencies offering support.
If it is considered that the adopted person should not have access to the information, legal advice should be obtained regarding a possible application to the High Court to prevent access.
See Adoption Case Records Procedure for the contents of the Adoption Case Record.
3.1 Adoption Orders Made Before 30 December 2005
The Adoption Service provides a service to adopted persons seeking access to their Adoption Case Record where they are borough residents or where the borough arranged their adoption and/or where the borough holds the files relating to their adoption.
Any request by an adopted person for access to their Adoption Case Record must be in writing and accompanied by a photocopy of identifying information, such as passport or driving licence.
The adoption agency has discretion to disclose to the adopted person material from the Adoption Case Record, and this discretion should be exercised in the context of the particular circumstances of each request. The adoption social worker should discuss the case with Head of Service, Adoption Fostering & Access to Resources before arranging any access to the Adoption Case Record.
There should be a clear record on file of all information disclosed. Where copies of documents have been provided, this should also be recorded.
Third Party Information
Careful consideration should be given to the disclosure of information held on third parties. Specific consent from the third party is not required, but consideration needs to be given to the nature of the information, the relevance and benefit to the adopted person of knowing the information and the likely effect on him or her of receiving it.
There may be instances where the information held has been given by a third party (for example a birth relative) with a clear understanding that it may be disclosed to the adopted person in the future.
Conversely, there may be information held about a third party which is highly confidential and would serve no purpose for the adopted person to know - for example information that a birth mother had had a number of terminations prior to the adopted person's birth.
All decisions should be based on professional judgment and the adoption social worker should discuss the case with his or her line manager before making a decision.
All decisions should be recorded on the file, with reasons.
Where there is information about siblings held on the record, again consideration needs to be given to the benefit and relevance to the adopted person of knowing the information. Where, for example, a sibling has been placed for adoption separately, and the disclosure of information about the sibling may reveal confidential information about the sibling's new family, then extreme caution must be exercised.
However, if the information relates to the past family history, will provide no identifying information about the sibling's present whereabouts and the disclosure will enable the adopted person to understand more about the family and the reason why the siblings were separated, then disclosure is more likely to be appropriate.
The most difficult situations arise when the information relates to past family history, concerns confidential information about a sibling or family member and would clarify for the adopted person the reason why children were removed from their family of origin, or siblings were separated. These situations should always be discussed with the line manager and the discussion and decision to disclose or not to disclose information should be clearly recorded on the file, together with reasons for the decision.
Any person may apply to the appropriate adoption agency for the disclosure of protected information about any person involved in adoption. Applications for the disclosure of protected information* may therefore be made by adopted people, birth relatives or any other person involved in an adoption. The adoption agency has discretion not to agree to the requested disclosure. It must record its decision and the reasons.
*Protected information is defined as information which is about a person and contains identifying information about that person.
The adoption agency must consider the following matters before deciding whether to disclose protected information to the applicant:
- The welfare of the adopted person;
- The views of the person to whom the information relates and if this is a child, his or her parents;
- All the circumstances of the case.
The agency cannot disclose identifying information about an adopted person to birth relatives without the consent of the adopted person.
Where the request relates to an adopted child, the obtaining of consent will depend on the child's age and understanding and the consent of the prospective adopters will also be required.
Persons involved in adoptions can provide their consent in advance to the disclosure of identifying information about them at some point in the future.
Decisions made in relation to applications for disclosure of protected information must be communicated in writing both to the applicant and the subject, and the reasons for the decision must be outlined.
Where an application for disclosure of information relating to an adult is refused, this is a Qualifying Determination and the applicant may apply to the Independent Review Mechanism in relation to the decision.
Where an application for disclosure of information is agreed despite the objection of the subject, this is also a "qualifying determination" and the subject of the information may apply to the Independent Review Mechanism.
The person requesting an Independent Review must apply within 40 working days of receiving notification of the decision.
There is no similar right to an Independent Review where the application relates to information held on a child and is refused.
Where a matter is referred to an Independent Review Panel, the Independent Review Panel will send their recommendation to the adoption agency. The agency is not obliged to follow the recommendation, but must take it into account when reconsidering the application.
The agency must then notify the applicant, the subject and the Independent Review Panel of the decision and reasons.
4.1 Adoption Orders Made Before 30 December 2005
Where a birth relative requests access to an Adoption Case Record, there is no entitlement on their part to such access and it is for the adoption agency to decide whether information contained within the records may be disclosed. Any decision to disclose such information can only be taken after discussion with and with the agreement of the Head of Service, Adoption Fostering & Access to Resources.
In all cases, a balance must be struck between the confidentiality of the information, the enquirer's need to know, the relevance of the information to the enquirer and, when considering a request by a birth parent or relative, whether the anonymity of the adoptive placement can be preserved.
Information which would enable the birth relative to identify the adopted person should not be given, for example whether or not there was a change of name on the adoption, or the name of the adoptive family. However, sometimes the records include information received in the intervening years such as news of progress made at school, health problems, achievements, requests for post-adoption support. Careful consideration needs to be given as to whether it may be appropriate to disclose any of this information to a birth relative.
Where the birth relative makes an enquiry in relation to an adopted child who is still under 18, consideration should be given to approaching the adopters to request up-to-date information about the child and/or to offer to pass on information about the birth family and/or to seek the views of the adopters about any future exchange of information. Adopters may also be asked to clarify whether the adopted child is to be told of the birth family's request although there should be no implied expectation that they should do so against their wishes - and they should be given information about independent support agencies which may be able to assist them.
The response to a birth relative should take into account any contact between the birth family and the agency since the child was adopted and any arrangements/agreements for post-adoption contact and how these have worked.
4.2 Adoption Orders Made on or After 30 December 2005
5.1 Adoption Orders Made Before 30 December 2005
In the case of requests for information by adopters, regard must be had to the requirements on the part of the agency to share full information about the child and his or her history with prospective adopters prior to the placement. If the disclosure of information would assist and enhance their ability to care for the child in the placement, then the balance should weigh heavily in favour of the disclosure of the information save for confidential details about a birth parents' medical history, which would have no relevance to the adopters' in their care for the child.
5.2 Adoption Orders Made on or After 30 December 2005
Any other request for access to Adoption Case Records must be referred to the Head of Service, Adoption Fostering & Access to Resources. In some circumstances, the Head of Service, Adoption Fostering & Access to Resources may decide to seek the authority of the Head of Service before giving consent, for example a request from a researcher authorised by the Secretary of State.
In the case of members of staff within the Children Social Care Services who are involved in adoption matters regularly, they will be asked on appointment to their post to sign an agreement to maintain the confidentiality of all adoption information.
In all other cases, the person making the request will be asked to sign a form of declaration relating to confidentiality before access can be agreed.
Access to information contained in Adoption Case Records is normally limited to:
- The Regulatory Authority (mandatory);
- The Ombudsman (mandatory);
- Any person undertaking a Statutory Inquiry under section 81 of the Children Act 1989 (mandatory);
- CAFCASS Officers (mandatory);
- The Court and officers of the Court (mandatory);
- Any person appointed to deal with a complaint or representation in respect of which access to the Adoption Case Record is required in order to carry out the responsibilities of his or her appointment (mandatory);
- An Independent Review Panel convened to consider a Qualifying Determination of an adoption agency, e.g. where an adoptive applicant has exercised his or her right to challenge a decision of the adoption agency as to their suitability to adopt or where a decision has been made in relation to the disclosure of protected information (mandatory);
- The Secretary of State or persons authorised on his/her behalf (usually mandatory unless for research purposes);
- Social workers and other professional/administrative staff directly concerned with the case who establish a genuine 'need to know' (discretionary);
- Legal and Medical Advisers (discretionary);
- Other adoption agencies or specialists taking part in the adoption (discretionary);
- Adoption agencies or local authorities undertaking birth records counselling (discretionary);
- Any person undertaking a Serious Case Review in relation to a child (discretionary).
Disclosure of information is also mandatory where a child is to be or has been placed for adoption when the placing authority must notify the child, parents, prospective adopters and their GP, the local authority, health trust and education authority for the area where the prospective adopters live - see Placement for Adoption Procedure.