On 30 December 2005 the Adoption and Children Act 2002 came into force, and the first children adopted “post-commencement” are beginning to reach adulthood. They are the first adopted adults who will be looking for information about their adoptions under the framework established by the 2002 Act and the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005. The delayed impact of the regulations and the reorganisation of adoption services into regional adoption agencies (RAAs) has meant confusion for practitioners and variation in practices across England.
Adoption support agencies have been offering intermediary services to adopted adults and their relatives for 15 years, and follow a fixed process set out in the Pre-Commencement Regulations. They are clear about from whom they can accept applications, how they should seek information and what they may or may not share. There are no regulations providing for intermediary services for post-commencement adoptions, and very little statutory guidance on what and how information can be disclosed.
Accessing files
The first issue is finding where the file is held. Regulations require that an adoption file must be held securely for at least 100 years by an adoption agency – either by the agency that placed the child for adoption or the one to which files have been transferred. Where a local authority’s adoption service is being provided by an RAA, the file might still be held by the local authority. Despite the name, most RAAs are not registered as adoption agencies and therefore adoption records cannot be transferred to an RAA but might be held on behalf of the appropriate adoption agency by a local authority or registered adoption agency forming part of the RAA. Where the adoption file is held, and who makes decisions about disclosure of information, is not always clear.
Having identified the appropriate adoption agency, the adopted person has a right to receive a copy of the information required to have been disclosed to their adopters under the Adoption Agencies Regulations 2005 and information which would enable them to apply for their original birth certificate. The information should include the child’s unedited permanence report. The adopted person also has the right to apply for information from their court adoption file, but this will have protected information redacted before disclosure.
The adopted adult can apply to the appropriate adoption agency for further information from their files, and any person can apply to the agency for disclosure of information but must give their reasons for the application. The agency may refuse the application if it considers it inappropriate. It must take “all reasonable steps” to obtain the views of any person who is identified in any information which may be disclosed, and the views of the parents if information is sought about a child. The agency must take those views into account but is not bound by them. It must also consider the welfare of the adopted person and the full circumstances of the case. Where information is sought about an adopted person who is still a child, that child’s welfare must be the agency’s paramount consideration.
Counselling arrangements
Agencies must provide information about, or arrange counselling for, any person applying for information, the subject of information and anybody making a prior agreement for disclosure of information about themselves. This must be a free service for an adopted person, but reasonable fees may be charged for any other person.
As most children adopted since 2005 will have been removed from their birth family in care proceedings, there will also be information available on the local authority care file, disclosable in accordance with Data Protection Act subject access principles, and a court care proceedings bundle, to which the child will be entitled as a party to those proceedings.
The expectation of adoptions under the 2002 Act is that a child will have had access to information in the form of a life story book and a later life letter, together with adopters who have been open about the child’s background. Unfortunately, this is not always the case, and adopted adults must have access to appropriate support when accessing their information, through whichever route it is received.
POINTS FOR PRACTICE
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Practitioners should be aware of where adoption records are held, whether the appropriate adoption agency (AAA) or an entity within the RAA acting on the AAA’s behalf. Who is the data controller for the RAA? Although there is an adoption-specific right of access, standard data protection rules still apply.
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If access to records work does not form part of the RAA contracting arrangement, has the appropriate adoption agency retained staff with appropriate expertise to carry out this work? This should not be left to the data protection/subject access request team within a local authority.
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Who is the agency decision maker for access to records? What is their decision-making protocol and are they aware of their responsibilities, including to provide written reasons?
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Other sources of information, including care records, hold more detailed information than adoption files. Are these linked to or held in the same place as adoption records or would the adopted person have to make separate applications? Can this be streamlined?
