FL v Registrar General

Disclosure of adoption records relating to a person adopted before the appointed day requires exceptional circumstances under section 79(4) of the Adoption and Children Act 2002. The test is narrower than the earlier approach under the Adoption Act 1976. An understandable wish to know family origins, psychological distress, or the exhaustion of other avenues will not ordinarily suffice. The court must assess exceptionality objectively and in the wider public interest, including the confidentiality of adoption records and the rights of possible third parties. The fact that the adopters or other participants may have died is relevant but is not determinative. The court cannot enlarge the statutory categories of birth relatives or remedy an alleged legislative lacuna by interpretation.

The claimant, the daughter of a man adopted in 1927, sought an order requiring the Registrar General to disclose information enabling her to investigate her father’s birth family. The application was made under rule 105(1)(b) of the Family Proceedings Adoption Rules 2005 and raised the construction of section 79(4) of the Adoption and Children Act 2002.

She relied on her father’s difficult behaviour, possible mental-health problems, the effect on her family, her wish to establish her identity and family history, and the absence of surviving adoption records elsewhere. She also relied on alleged unequal treatment of descendants of adopted persons and Article 8 of the Convention. The central questions were whether the circumstances were exceptional and whether the statutory scheme could be interpreted to assist a group excluded from the definition of birth relatives.

1. Application dismissed. The Registrar General had no independent discretion to disclose the information. Disclosure could occur only by order of the High Court under section 79(4) of the Adoption and Children Act 2002.
2. The statutory words were clear. The court therefore applied their ordinary meaning and did not rely on legislative history or the rule in Pepper v Hart [1993] AC 593. The court could not rewrite section 98 to include descendants of adopted persons within the statutory definition of birth relatives or treat their exclusion as a parliamentary oversight.
3. The words “in exceptional circumstances” narrowed the earlier approach under section 50(5) of the Adoption Act 1976. The approach in Re H (adoption: disclosure of information) [1995] 1 Fam CR 546, based on sufficient weight and justification, was less rigorous. The Court of Appeal’s approach in D v Registrar General [1997] 1 FLR 715, also reported at [1998] Fam 19, required an exceptional need to know and careful protection of confidential adoption records.
4. An advantage to the adopted person was not an essential requirement where that person was dead. It could nevertheless be a powerful factor where the adopted person remained alive. Confidentiality required a balance between the applicant’s interests, public confidence in adoption records and the rights of possible third parties. The passage of time and presumed deaths were relevant, but not decisive. The court endorsed the balancing approach in Gunn-Russo v Nugent Care Society & Secretary of State for Health [2001] 1 FLR 1.
5. The claimant’s distress, desire to understand her father, possible hereditary illness, and wish to establish family connections were objectively understandable but not exceptional. Their cumulative effect did not satisfy section 79(4). The court declined to give guidance about applications to other adoption courts because that issue was not properly before it and had not been supported by evidence.