INTRODUCTION
7.1 In this Chapter the Commission sets out three recommendations which are intended to provide a degree of relief and protection for those who see the information rights created by the Adoption Information Act 1990 as intruding unjustifiably on their privacy. Two of the recommendations involve minor qualifications to the information rights created by the Act. In the Commission’s view these qualifications are warranted by the considerable relief that the recommendations will provide for those who are the subject of identifying information which may be supplied under the Act. It was clear from the evidence that a considerable amount of the anxiety associated with the release of identifying adoption information was related to the possibility of a reunion or contact carried out in a way, or at a time, over which the person with whom contact is sought had no influence or control.
7.2 For some who made submissions to the Commission, the main concern was about the management of the initial contact. They were not necessarily opposed to some form of contact, but they were worried about a situation in which the contact might be made in a way that was completely unexpected and in a manner which might cause them distress or embarrassment. We heard, for example, of an adopted people who were very happy to make contact with their birth mothers, but did not want their adoptive parents to be disturbed by the contact. They would welcome a letter from the birth parent and an opportunity to meet with them privately, but would not want the birth parent to make direct contact with the adoptive parents. Others who spoke to the Commission had a more absolute desire to prevent the release of identifying information and contact. However, these people would often describe their fears in a way that emphasised the impact of an initial uncontrolled and unexpected encounter. Many submissions, for example, expressed the fear that there would be a sudden knock on the door or a sudden telephone call and this would disrupt their lives.
7.3 Some of those who feared invasions of their privacy had more extreme fears, for example that the adopted person or birth parent would wish to harm them. It is possible to imagine, for example, a case where an adopted person has reasonable fears of a birth parent or relative who has abused the adopted person as a child, or a case where a person is mentally unstable and there is a reasonable fear that they might attack the other person. Fear of such situations may well derive from stereotypes, or simple ignorance of the evidence relating to the experience under adoption information laws. It is clear that in fact such cases are very rare. However, like harmful behaviour from members of non-adoptive families, they constitute a possible outcome for people affected by the Act.
7.4 This evidence about fears, justified and unjustified, should be considered together with the other evidence already mentioned, namely that the vast majority of persons wanting to make contact appear to be equally anxious that the initial contact should be of a kind that is welcomed, or at least not resented, by the person approached. In many situations, the difficulty is that one person is not in a position to know the attitude and wishes of the other. It is common to use intermediaries whose main task appears to be to try to identify the way the person approached wishes to manage the contact. Both in submissions to the Commission and in the literature there is a strong theme to the effect that it is desirable to use intermediaries. There should be a period before any meeting occurs during which the wishes and attitudes of the two parties can be made known to each other, and where appropriate, a suitable mechanism for meeting put into place.
AN ADOPTION INFORMATION EXCHANGE
Recommendation
An Adoption Information Exchange should be established, to be administered in a manner similar to the Reunion Information Register, on which any person directly involved in the adoption, ie adoptee, birth parent or adoptive parent (or other persons at the discretion of the Director-General) may leave information or messages for any other such person.
7.5 In the Commission’s view, it would be possible to ease the anxieties of many of the persons who could be contacted without compromising the basic principles of the Act. We propose that there should be an Adoption Information Exchange. The system we envisage would be administered in a similar way to the Reunion Information Register, and can be regarded as an extension of it. Its main features should be as described below.
7.6 People who wished to have a degree of control or influence over the behaviour of any person who could be likely to make contact would have the opportunity to place a message, addressed to the relevant person or class of people, on the Adoption Information Exchange. The system would allow for messages to be left not only by birth parents and adopted people but also by adoptive parents. There would be no restriction on the content of such messages.
7.7 There are many situations in which such a facility would be desirable. A message from an adoptee, for example, might be to the effect that he or she would like the birth parent to make contact discreetly by telephoning a particular number or leaving a letter at a post office box. Adoptive parents might leave a message to the effect that the adopted person was taking the Higher School Certificate examinations and requesting that the birth parent delay any action for some period. Again, adoptive parents might ask that the birth parent should contact them before contacting the adopted person to give them an opportunity to explain to the adopted person that he or she had been adopted. They might, alternatively, wish to stay out of the transaction and might give the birth parent the adoptee’s current name and address and encourage direct contact with the adoptee.
7.8 Birth parents, too, might use the system. A birth mother might explain that she has not told her husband and other members of her family and would prefer that no contact be made at all. She might, however, add some information that would be of importance to the adopted person, such as the reasons that she signed the consent for adoption. More commonly, perhaps, the birth parent might ask the adopted person to make contact in a particular way that would not disclose to other members of the family the fact that she had given up a child for adoption many years previously. These examples, of course, relate to people who are anxious about the operation of the Act. It may well be that the Adoption Information Exchange system could also be used for messages that reflect no such anxieties, and might, for example, simply register the fact that the person sought would be delighted to be contacted.
7.9 Messages left on the Information Exchange would not in any way be enforceable or affect legal rights. For that reason, they would not affect the basic principles of the Act. In the Commission’s view, however, by facilitating communication between people before contact is made, the system would have considerable potential to reduce the amount of anxiety often associated with exercise of information rights under the Act.
7.10 The difficult question of whether messages should be subject to any form of scrutiny or censorship arises under the existing legislation, and is discussed in Chapter 8. The Commission has refrained from making a firm recommendation on this issue, but leans towards the view that messages left on the Exchange should not be open to censorship by officials. It recommends, however, that the law be clear and explicit on this point, and that appropriate counselling, information and support be provided in connection with the transmission of such messages.
7.11 The possibility of adoptive parents leaving messages on the Information Exchange is an important aspect of it. Earlier in this Report the Commission has noted that the Act does involve retrospective legislation of a kind that can prove very difficult for those who have organised their affairs on the basis that adoption would provide a guarantee of secrecy. Although in the Commission’s view this fact does not require any change in the basic principles of the Act, it does justify measures designed to protect the privacy rights of those involved to the extent that such measures can be devised consistently with the basic principles of the Act. It is clear that many of the adoptive parents that have spoken to the Commission would have benefited from such a system.
7.12 It could be argued that the proposal is objectionable because it places adoptive parents in a position of power in the relationship between the birth parent and the adopted person, and that this is inappropriate and inconsistent with the fact that the adopted person is an adult. It might also be suggested that the system could be abused by persons placing false messages. Adoptive parents, for example, might leave a message for the birth parent stating falsely that the adopted person is dead or does not wish to make contact with the birth parent.
7.13 In the Commission’s view these dangers are real but should not be exaggerated. Evidence to the Commission indicates that in the vast majority of cases people behave decently, sensibly and sensitively and there is no reason to think that their behaviour in relation to the Adoption Information Exchange would be any different. In addition, it would appear to be self-defeating for a person to leave a false message on the Information Exchange. For example, if adoptive parents left a message containing false information about the adopted person in an effort to discourage the birth parent from trying to make contact, the birth parent might disbelieve that message and carry on the search, eventually discovering the adopted person and also revealing to the adopted person the fact that the adoptive parents had placed the false message. It is reasonably clear from evidence put to the Commission that in many cases, the truth of such statements in messages about other people would not be accepted unquestioningly. Some birth parents, for example, would be reluctant to believe that the adopted person did not desire contact unless they had heard that view directly from the adopted person. In the Commission’s view, therefore, the combination of decency and self interest is likely to mean that the vast majority of messages left on the Adoption Information Exchange would be truthful and sensitive and of great benefit to all parties involved.
AN ADVANCE NOTICE SYSTEM
7.14 The Commission also proposes a second mechanism designed to reduce the anxiety arising out of access to identifying adoption information. This is a system which would allow persons who were anxious about being identified to ensure that they had prior notice of any release of information. We propose that it should be possible for birth parents, adopted persons and adoptive parents to lodge an Advance Notice Application. Such an application would be noted on the files of the Registry of Births, Deaths and Marriages in the same way as a contact veto. A person applying for identifying information or birth certificate would be informed that an Advance Notice Application had been made and would be told that the release of the certificate or information would be delayed by a particular period (say two months). At the same time notice would be given to the person who lodged the application that identifying information had been requested and that information would be released at the end of the prescribed period. This system, by giving warning that identifying information would be released, would allow the person to take whatever steps they wished to take during that period. They might, for example, leave a message on the Adoption Information Exchange. They might tell members of their family about the situation in a way that would be less traumatic for them than if contact was made without prior notice.
7.15 As with the recommendation for an Adoption Information Exchange, this proposal includes the adoptive parents1 and is intended to relieve anxiety on their part, as well as on the part of adopted persons and birth parents who would prefer not to be contacted without prior notice. Unlike the Adoption Information Exchange proposal, it does involve a small qualification on the rights of an adopted person or birth parent to identifying information in that it delays the person’s access to the information by the prescribed period. In the Commission’s view this small modification of the rights of information recipients is not too high a price to pay for the considerable easing of anxiety that this system might provide to a number of persons who will be identified by the release of adoption information. In particular, it may be that adoptive parents who have not told the adopted person of their adoptive status would find this system attractive.2
7.16 The Commission has considered the question of whether the system proposed could be made to apply automatically in all cases. Such a system would involve Departmental officers locating the person about whom information is to be released and asking them if they would wish to defer supply of the information, or put a message on the Adoption Information Exchange, or take any other action. Such a system would be expensive and would be likely to cause delays, as well as considerable distress in situations where the search was not successful or other difficulties arose in the course of administration. It would involve a considerable use of resources which would be unnecessary in the majority of the cases. In addition, the contact made by officers may in some cases be as unwelcome as contact by the adoptee or birth relative, or contact by an intermediary on their behalf. In the Commission’s view such a proposal would not be an efficient or appropriate adjustment of the interests of the parties. It is sufficient, in our view, to establish a system which would enable protection to be given to those persons sought who take appropriate action to protect their interests, either by leaving a message with the Adoption Information Exchange or applying for Advance Notice.
DISCRETIONARY POWER TO REFUSE BIRTH CERTIFICATES OR PRESCRIBED INFORMATION
Recommendation
The Adoption Information Act should be amended to give the Director-General a discretion to refuse to supply a birth certificate or prescribed information or to attach conditions to the supply of that information. Adopted persons, birth parents and (with the consent of the adopted person) adoptive parents should be able to apply to the Director-General to exercise the discretion. The power should be limited to exceptional circumstances where it is necessary to avoid serious harm. It should be subject to the Community Welfare Appeals Tribunal.
7.17 It has been stated earlier (in Chapter 6) that the Commission found no reason to overturn the basic principles of the Act, and for this reason does not recommend that there should be a right to prevent the issue of a birth certificate or the release of prescribed information.
7.18 It has, however, been proposed by the Family Information Service for the Department of Community Services that in a very limited class of cases it would be appropriate to limit access to identifying information:
There have been a very small minority of cases where it would seem that access to identifying information should not be permitted. However the rights of an adopted person or birth parent to access information under the Act is an entitlement and no capacity exists to deny a person access to identifying information.
It is submitted that a provision should exist allowing discretion to either prevent the issue of a birth certificate or any form of identifying information or to allow issues only after compulsory counselling or other conditions.
Due to the serious nature of denying a person access to rights, the exercise of this discretion should remain at a most senior level (eg Director-General) and be subject to appeal provision.
Such cases may include birth parents who have been found guilty of serious child abuse or situations where the party accessing the information has stated that the information will be used for harmful or illicit reasons.
Where the discretion not to allow access to identifying information is exercised, the client should be informed in writing of the decision and should have the right to appeal against the decision. Appeals should rest with the Community Welfare Appeals Tribunal.3
7.19 The Commission agrees with the substance of this submission.4 There should be provision for identifying information to be withheld in exceptional circumstances, where it can be demonstrated that there are sufficient reasons for doing so. The Commission also agrees that it is essential that any such decision should be subject to review by an independent body.
7.20 In light of the seriousness of the matter, in the Commission’s view it is arguable that the discretion should be exercisable only by an independent body, such as the Supreme Court or the Tribunal.5 On the other hand, there are obvious practical advantages in having the decision exercisable by the Director-General, with a right of appeal to the Community Welfare Appeals Tribunal, as recommended by FIS.
7.21 Accordingly, the Commission recommends that the Act be amended to provide that the Director-General may make an order preventing or deferring the issuing of a birth certificate, and/or the supply of prescribed information, or imposing requirements as to counselling or otherwise, where he or she is satisfied that in the exceptional circumstances of the case, such an order is necessary to protect a person from serious harm.
7.22 It is also desirable that an adopted person or birth parent who feels that there are such circumstances in his or her case should be able to apply to the Director-General for such an order, and should have an appeal to the Community Welfare Appeals Tribunal in the event that the application is refused. Adoptive parents should also be able to make such an application, but only with the consent of the adopted person.
7.23 It is acknowledged that lack of identifying information may make it difficult for the person seeking information to take full advantage of the review procedure before the Tribunal. Being unaware of the identity of the other person, the applicant would not normally be able to cross-examine the person or attack the person’s credibility. However, the substance of the matter will be an allegation that supplying the information will place a person at risk of serious harm, and this will normally involve allegations about the recipient of the information, for example that he or she has been guilty of assaults. It will be possible to provide evidence and argument to meet such allegations, without knowing the other person’s identity. It will be a matter for the Community Welfare Appeals Tribunal in any such case to devise the procedures that are most appropriate for the particular case. Even if the procedural difficulties lead to a limited contribution from the other person, the process will nevertheless be valuable because it will provide a forum in which the Director-General or the individual applicant will have to convince the Tribunal that on the basis of available material, the discretion should be exercised.
FOOTNOTES
1. There is some similarity between this proposal and a suggestion by the Registry of Births, Deaths and Marriages “that the Commission might consider giving adoptive parents the right to lodge a contact veto on behalf of their adopted son or daughter on the proviso that it is only binding for a period of three months at which stage it then lapses and cannot be extended”: Registry of Births, Deaths and Marriages Submission at 2.
2. The Commission understands from FIS that in certain cases, as where an adopted person is seriously disabled, co-operation between FIS and Registry of Births, Death and Marriages has led to an arrangement by which the person is given advance notice of a search, and the release of information presumably delayed, so that lodgment of a veto need be considered only where it is necessary. This practice, whether or not authorised under existing legislation, illustrates the need for the Commission’s recommendation.
3. FIS Submission at 8-9.
4. In England, the Court of Appeal has held that there is room for limiting information in truly exceptional circumstances (in that case a mentally unstable prisoner had murdered his cell mate in the belief that the cell mate was his adoptive mother; the prisoner had given cause for thinking that he would kill again), even where the legislation makes no provision for such cases: R v Director-General; ex parte Smith [1991] 2 WLR 782, CA.
5. If the power is given to the Tribunal, there should be a right of appeal on the merits to the Supreme Court.
