In re L (Adoption: Disclosure of Information) (D v Registrar General)

Applications to open adoption records under section 50(5) of the Adoption Act 1976 require more than a birth relative’s emotional desire, strongly held wish or curiosity. The mandatory confidentiality scheme imports an exceptional threshold. The applicant must establish an exceptional need to know, or a need or benefit relating to the adopted person rather than the birth family. Section 51 provides adopted adults with an access route, but creates no equivalent right for birth relatives. The Court of Appeal declined to follow the more permissive ordinary-burden approach expressed in Re H (Adoption: Disclosure of Information) [1995] 1 FLR 236. Appellate interference with the discretionary decision requires the judge to have been plainly wrong or to have approached the discretion improperly.

A birth mother sought an order under section 50(5) of the Adoption Act 1976 requiring the Registrar General to disclose information to the Post Adoption Centre. The purpose was to enable discreet, non-identifying inquiries about her daughter, who had been adopted as a baby in 1960.

After the adoption agency had provided non-identifying information in 1977, Westminster City Council refused a later request in 1992. Cazalet J dismissed the mother’s application on 23 November 1995. She appealed, arguing that the earlier contact and possible benefits to the adopted person justified disclosure. The central issues were the proper threshold under section 50(5) and whether the judge’s exercise of discretion was plainly wrong.

The President, Sir Stephen Brown, delivered the judgment. Lord Justice Pill and Sir Patrick Russell agreed.

1. Disposition. The appeal was dismissed unanimously. There was no order as to costs and leave to appeal was refused.
2. Appellate restraint. The decision under section 50(5) involved the exercise of a discretion. The Court of Appeal would interfere only if the judge had failed to consider relevant matters, considered irrelevant matters, or was plainly wrong. Cazalet J had carefully considered the statutory scheme, the evidence and the competing interests. His decision disclosed no such error.
3. Statutory confidentiality. Sections 50(1) and 50(4) of the Adoption Act 1976 establish the Registrar General’s restricted record-keeping role. Section 50(5) imposes a mandatory prohibition on disclosure, subject to section 51 or an order of the specified court. Although the statute contains no express test, the mandatory language and limited exceptions import an exceptional element. Applications must be approached with great caution.
4. Relevant threshold. An emotional desire, strongly held wish or curiosity of a birth relative is insufficient. The applicant must show an exceptional need to know the information, or a need or benefit relating to the adopted person rather than the birth family. The possible benefits identified by the mother did not meet that threshold. The Court also had to recognise the risks of distress or disruption in a fully closed adoption, particularly where the adopted person’s circumstances and wishes were unknown.
5. Section 51 and Re H. Section 51 provides an adopted person aged 18 or over with a statutory route to obtain birth records, but there is no corresponding procedure for a birth parent. The President considered that the formulation preferred by Thorpe J in Re H (Adoption: Disclosure of Information) [1995] 1 FLR 236, which treated the application as subject only to an ordinary burden of showing sufficient weight and justification, suggested too low a threshold. He differed from it and endorsed an exceptional need-to-know approach. Cazalet J had nevertheless applied an approach effectively requiring something exceptional, so the result remained correct.

• Court of Appeal ([1996] EWCA Civ 1195, 12 December 1996): dismissed the appeal, with no order as to costs, and refused leave to appeal.
• High Court, Family Division (Cazalet J, 23 November 1995): dismissed the application for disclosure under section 50(5) of the Adoption Act 1976.