Abstract
Cases
These are available on the Scottish Courts website: www.scotcourts.gov.uk.
Clarification of the law in relation to application for access to adoption process by child of a deceased adopted person
Application by AB for access to Adoption Papers SC GLW 3
Sheriff Andrew Cubie at Glasgow Sheriff Court
7 January 2022
Circumstances of the case
The son of a deceased adopted person sought to be put in the same position as his parent in order to be granted access to the adoption court process. A previous application had been refused; however, the applicant had produced further material and so this was treated as a fresh application. The additional information consisted of a letter from an individual who had made a similar application in England and an email from a self-titled ‘DNA Search Angel’, which supported the applicant on the basis that information allowing two families to be traced by way of DNA was so widely available as to render the confidentiality academic and unnecessary.
Decision
Access to the adoption court process is protected in accordance with the confidentiality that characterises adoption proceedings. The matter is regulated by Rule 25 of the first schedule to Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (SSI 2009/284). Once an adoption order has been granted under the Adoption (Scotland) Act 2007, section 59, the court process is sealed in an envelope marked ‘Confidential’ for a hundred years. It may only be unsealed in certain situations including where a Sheriff grants the application of a person who has set forth the reason for which access to the process is required. There is no guidance laid down as to what information might meet this requirement. In terms of the regulations as currently worded, descendants of the adopted person (such as the applicant) have no special status or means of access to the papers.
In England, there are only two statutory routes available that allow for the court process to be opened on application by the descendant of an adoptee. The position under the Children Act 2002, section 79(4), mirrors that in Scotland, namely that only where circumstances are exceptional would the court allow the opening of the adoption process to the descendant. The Sheriff referred to a number of English authorities which illustrated this point and emphasised the importance of confidentiality to the adoption process.
The second route in England is set out under the Family Procedure Rules 2010, Rule 14.24, which does afford the court greater latitude; it may grant permission to allow inspection or copying of documents held by the court, with no evident limitation on that power. Even allowing for that apparent freedom in the case of X (Adopted child: Access to court file) [2014] EWFC33, which related to an application to have access to the court papers, the judge, Sir James Munby, then President of the Family Division of the High Court of England and Wales, held that an application under Rule 14.24 should always be approached with an appropriate degree of caution and identified a number of principles in relation to these rules.
There are no alternative routes for applicants in Scotland. The only basis on which access can be granted is if the person applying can make out that there is a requirement; this can only be done if there are exceptional circumstances.
Accordingly, in the absence of exceptional circumstances, such as a medical query, an application such as this, based primarily on curiosity, cannot succeed during the hundred-year restriction period.
In this case, however, the applicant’s father had been adopted in the year of his birth, in 1933, when the Adoption of Children (Scotland) Act 1930 was the relevant statutory authority. The Rules that applied stated that the court process for adoptions was sealed for a period of 20 years and so had expired in 1953. Accordingly, having regard to the passage of time and the absence of any obvious saving provision, the process could be opened without the need for any exceptional circumstances, or a requirement, to be established.
Nonetheless, the court took the view that it should still proceed with caution, having regard to the considerations which applied in X as identified by Sir James Munby.
The Sheriff stated that:
The court has to have regard to all the circumstances of the case and has to exercise its discretion fairly; the public policy of maintaining public confidence in the confidentiality of adoption files has to be considered and respected.
Considerations include:
duration of time that had elapsed since the order was made; whether any or all of the affected parties are deceased; potential impact of disclosure on any relevant third parties and any safeguards that could be put in place to mitigate that; and relevance of the nature of the connection between the applicant and the information sought.
In this instance, taking account of the points listed below, the court was satisfied that the application should be granted for the son to see the adoption process relating to his birth father:
The applicant is the child of the adopted person. The adopted person and his wife, the applicant’s mother, are both deceased. The applicant has no siblings. It is highly likely that the birth mother is deceased. Any upset that might be caused to any surviving relatives of the adopted child’s birth mother is speculative. The adoption took place more than 88 years ago. The applicant’s reasons for wanting the information are both intelligible and genuine.
Restatement of the correct approach to be taken in Children’s Hearing appeals, the appropriateness of naming the alleged perpetrator and the standard of proof where grounds of referral contain an allegation of criminal conduct
Appeal by AW v Principal Reporter [2022] SAC (Civ) 6
Sheriff Principal Pyle
25 October 2021
Circumstances of the case
Grounds for referral in terms of the Children’s Hearings (Scotland) Act 2011, section 67(2)(b) and (c) had been established in court in respect of two children, namely that a Schedule 1 offence had been committed related to one of the children and that the second child ‘has or is likely to have a close connection’ with the offender. The father was named as having assaulted the child. He appealed the decision. The challenge was that there was an insufficiency of evidence for proof to the relevant civil standard, that the father was the perpetrator of the assault and in any event should have been identified as such.
Decision
The court was critical of Counsel for the father, reminding them that it is of critical importance that any such application clearly states what matters are sought to be reviewed.
The Child Care and Maintenance Rules 1997 (SI 1997/291) at Rule 3.59 provide that in an application for a stated case, the appellant ‘shall specify the point of law upon which the appeal is to proceed …’. The rules of the Scottish Civil Appeal Court (SSI 2015/356) restrict the appeal to these matters, unless permission to raise other matters is given – Rule 30.3.
The court stated that: … the summary nature of these proceedings underlines not only that a referral to the Sheriff ought to be dealt with as expeditiously as possible, with the minimum of delay, but also that written reasons provided at the time of the decision and subsequently reflected in the stated case do not require to be an elaborate formalistic product of refined legal draftsmanship.
The purpose of a statement of facts is to focus on the alleged facts to be proved in support of the ground of referral. Importantly, one of the cornerstones of the Children’s Hearings is that the welfare of the child is the paramount consideration. In naming the alleged perpetrator, this clarity assists social workers and family members in understanding future risks to the child and how these can be mitigated. Furthermore, the child is entitled to know who harmed them. Where a person is included in a pool of possible perpetrators, a shadow of doubt is placed over them, and this may affect how they are assessed in relation to this child and other children. Grounds of referral may still be proved where the Sheriff is not satisfied that on the appropriate standard of proof the perpetrator has been identified. The fact that abuse has taken place by one member of a pool of perpetrators will be sufficient provided the ground has been properly framed.
In Children’s Hearings’ proceedings, the criminal standard of proof applies only when the Sheriff is considering grounds under section 67(2)(j), the ‘offence ground’, where it is contended that the child has committed an offence: section 102 of the Act.