3.9.8 Access to Birth and Adoption Case Records

1. Legal Framework

The Children Act 1975 inserted new provisions into the Adoption Act 1958 which gave adopted people the right to information that enabled them to apply for a copy of their original birth certificate. These provisions subsequently became section 51 of the Adoption Act 1976. This provision was carried forward for pre-commencement adoptions as section 79(6) of, and schedule 2 to, the Adoption and Children Act 2002 which came into force on 30 December 2005.

Regulations 14, 15 and 16 of the Adoption Agencies Regulations 1983 have been retained. Regulation 15 gives adoption agencies discretion over the information they disclose from their case records. This is significant as it ensures that adopted adults continue to have access to the information they need about their family history and origins.

The Adoption and Children Act 2002 provides for adopted adults to obtain their birth record information to enable them to obtain a copy of their birth certificate.

Providing birth record counselling and access to information is of vital importance in enabling adopted adults to understand the circumstances of their adoption and enhance their sense of identity. Within the Adoption and Children Act 2002 there are different procedures to be followed as detailed below:

People adopted before 12th November 1975 who do not know their birth name, are required to attend a counselling interview in order to receive the birth record information needed to apply for a copy of their birth certificate. The Initial application should be made to the Registrar General office;
People adopted before 12th November 1975 who know their birth name may apply for a copy of their birth certificate from the Registrar General who will inform them of the counselling services available to them;
People adopted on or after 12th November 1975 and before 30th December 2005 are not required to attend counselling interview but this service is available to them.

Birth record counselling can only be undertaken by a qualified social worker with knowledge and experience of adoption work and all the issues involved.

An Adoption Agency may exercise its discretion under Adoption Act Regulations 1983 15(2) (a) to provide information to the adopted person. The discretion must be exercised against the background of the adoption legislation and in the context of the particular circumstances of the case (Gunn-Russo v Nugent Care Society and another (2001) EWHC Admin 566).

Adoption records and reports are exempted from the subject access provisions of Section 7 of the Data Protection Act 2018 by the data protection (Miscellaneous Subject Access Exemptions) Order 2000. Where those records are protected by the legislation listed in the schedule to the Order, individuals (including adopted people, birth relatives, adoptive parents and prospective adoptive parents) are not able to use the DPA to insist on access to their personal data contained in those records. However, the agency may still exercise discretion and where relevant, disclose that information.

The Data protection Act 2018 and its principles will still apply to the way that adoption agencies obtain, retain and process information about individuals including the disclosure of information.

2. Offering an Informal Approach

Initial enquiries for access to files will be received through the Adoption Helpline.

If the enquirer does not live in Lincolnshire they should be advised to contact their local adoption support team or apply through the General Register Office. The Adoptions Search & Reunion website may assist in locating the correct agency. Checks should be made of Lincolnshire's database and the enquirer can be informed if the files are held by Lincolnshire. The enquirer is able to pass this information on to their local agency, who will then write to Lincolnshire to request the file.

If the enquirer lives in Lincolnshire their details should be recorded and Access to Birth Records Counselling Initial Referral Form should be completed. The enquirer should be advised that they will need a copy of their original birth certificate which they can obtain from the General Register Office.

The MOSAIC helpdesk should be contacted immediately to lock the case record and restrict access to only those persons specified.

If the adoption took place before 1949, unfortunately, it is likely that there will be little or no information held especially if the adoption was a private arrangement. It is best to advise callers of this.

The practice of all staff should be to encourage ongoing and open sharing of information and recording, including providing copies of key documents, (see also Section 3, Confidentiality Policy Values and Principles of Children's Services Policy, Values and Principles).

If a person in receipt of services asks to see a particular document or wants to have information about a particular aspect of the case, the social worker should discuss this with them to see whether the request can be dealt with informally by showing them the relevant part of the file or providing copies of relevant documents.

3. Handling Formal Requests for Access

If the enquirer wishes to proceed and have access to their adoption records, this request should be recorded on the Access to Birth Records Counselling Initial Referral Form and passed to the Practice Supervisor for allocation. If there is likely to be a delay in allocation, the enquirer should be informed and given an indication of how long the wait may be. Priority should be given in certain circumstances, for example, if suffering from a life threatening illness, or older adoptions (e.g. pre-1976). The enquirer should be informed of other agencies that can provide these services. The Adoptions Search & Reunion website provides a list of these agencies.

Once allocated, the counsellor (a qualified adoption social worker with experience of adoption work and all the issues involved) should contact the enquirer with an appointment.

The enquirer must be informed that they will need to bring photographic identification and proof of age, e.g. passport and driving licence, to the appointment. The allocated social worker should ascertain whether the enquirer has any special needs that will need to be taken into account in preparing for the appointment.

Prior to access being given, all adoption records held by Lincolnshire County Council Children's Services, on the person should be located and collected. Requests to access other Children's Services Records should follow the Access to Records / Subject Access Requests Procedure.

If the adoption took place elsewhere, the allocated adoption social worker will need to write to the relevant Local Authority or adoption agency to request the file. If the enquirer does not have this information, the adoption social worker will need to write to the Court that dealt with the adoption to ascertain the information. If the court is not known, the information can be gained via applying for the original birth certificate from the General Register Office.

The adoption social worker should check the whole file to ascertain whether any of the material comes within the exceptions to the rights of access.

There should be no disclosure of the identity of third parties or other sources of information, which fall within the second exception.

Any other information supplied by third parties should not usually be disclosed without the third party's consent. When it is not possible to obtain consent, discretion may be used to release information where there is no possibility of serious harm.

For more recent adoptions, for example from the 1970's and 1980's, and particularly those following care proceedings, where the family, care and adoption records were not separated it may be more appropriate to provide a summary of the information, however a summary should not avoid or gloss over significant information.

The adoption social worker must bring to the attention of the Practice Supervisor, any information for which there may need to be restricted access. In all cases the adoption social worker should meet with the enquirer at the agreed appointment and confirm the identity of the applicant.

Those people adopted before 12th November 1975 are required to attend counselling in order to receive the birth record information. The following areas should be covered in the interview of adults adopted before 12th November 1975:

Reason for enquiry;
The adopted person's current social circumstances;
Their experiences and knowledge of their adoption and the sources of that information;
Whether they were adopted transracially;
Whether their adoptive family is aware of their application;
Their support systems;
Their hopes, fears and expectations;
What information is being sought;
Whether contact with birth family member is being sought (Identifying information about third persons cannot be shared without their consent). Often at this initial visit with adoption social worker the adopted person may not know if they want to contact birth family member. Some may know immediately they want to search, others need several weeks/months/phone calls/meetings with adoption social worker before they know what they want to do next. They need to receive their birth history/background first, reflect on it before moving forward.

If at any time the enquirer indicates that they wish to contact a birth family member, a new enquiry should be recorded and the Intermediary Service Procedure should be followed.

The matter should normally be allocated to the same adoption social worker that has shared records with them.

After the birth record counselling interview the adoption social worker should complete the Registrar General form confirming that the person has attended for interview.

For those people who do not know their birth name but have applied for birth record information to Lincolnshire County Council, and Lincolnshire County Council arranged their adoption the same issues detailed above should be covered in the initial interview. If the adopted adult wishes to receive adoption record information, this may be shared at the same meeting if the adoption social worker considers it to be appropriate.

For those people who know their birth name and have applied for information from Lincolnshire County Council records, the interview should clarify what information they hope to receive from the official records.

The adoption social worker should explain the contents of the file, answer questions and to help the person understand the information recorded. They should be informed that third party information cannot be provided without the consent of the person. Information relating to the adoptive parents cannot be shared.

Where the person making the request has specific needs in relation to language or disability, arrangements must be made to present the information in a suitable manner and to involve approved interpreters as needed. The adoptee should be offered the opportunity to bring a supporter to the appointment if they wish to do so.

Interpretative and supportive counselling may be advisable in certain cases using a number of interviews to disclose the information, if the person concerned is willing to proceed in this manner.

A request for copies of information disclosed must be met.

The adoption worker should clearly record what information was shared and what was withheld. Any contentious decisions should be recorded, noting the decision making process. The adoption worker should ask the adopted adult to sign when receiving copies of their record with detail of what records have been received.

Adoption workers should ensure they understand Lincolnshire's policy on responding to disclosure of child protection concerns or incidents including historical abuse before starting birth records counselling.

4. Timescales

Access must be given to disclosable information within 40 days of receiving the request. This is the maximum time period allowed. The timescale can only be extended with the agreement of the person requesting access. Where he or she refuses to agree an extension, access should be given to all information open to disclosure at that point.

5. Applications by Children

Requests cannot be received from children under the age of 18 years unless these requests are sanctioned by their adoptive parent. In these cases, a judgement should be made by the agency as to whether the child making the request for access understands the nature of the request. No assumption should be made about their level of understanding. This should be assessed on an individual basis as with all children.

A child of sufficient understanding could be allowed certain information held about him or her, consistent with his or her best interests, as for example, information that would be recorded routinely in Life Story Books within current adoption practice.

6. Application by Adoptive Parents

Adoptive Parents should have received detailed information prior to the placement of the child for adoption. Where this may not have occurred, adoptive parents are entitled to receive file information in accordance with the Adoption & Children Act 2002.

7. Application by Agents

A request for access to records may be made through an agent (for example, a solicitor) where the applicant is unable to submit an application themselves- for example because of physical or mental incapacity. It is the agent's responsibility to produce satisfactory evidence that he or she has authority to have access to the records. This will always include proof of their identity. The contact Head of Service will decide whether the representative will be allowed access.

8. Application on Behalf of Deceased Persons

Where a request is received for access to the records of some-one who has died, the person making the application should be asked to explain in writing their relationship to the deceased person, what information is needed and why. The social worker should make a decision in consultation with his or her manager and advise the applicant in writing of the decision with reasons.

9. Corrections or Erasure of Records

If a person considers that any part of the information held on his or her records is inaccurate, he or she has the right to apply in writing for it to be corrected or erased.

If the objection is justified, there is a duty to correct or erase the appropriate information.

10. Refusal of Access

If the worker considers there are reasons to refuse a request for access to all or any part of the records, this should be discussed with his or her manager and legal advice should be obtained.

The contact Head of Service should be asked to make a final decision on refusal of access. If refused the date of the request and reason for refusal must be recorded in the file.

The decision and the reasons for it should be confirmed in writing to the person requesting access, or in a format appropriate to the needs of the person concerned.

11. Appeals Process

The person concerned has the right to apply to the Court for an Order to disclose, correct or erase information held. They also have a right of appeal to the Information Commissioner Office.