OVERVIEW OF THE HISTORY OF THE DAP GROUP CAMPAIGN
Written by Frances Lake
The Descendants of Deceased Adopted Persons (DAP) Group was started by me in 2008 as part of my need to discover just how many other people, like me, were unable to find, or had been denied access to, birth information about their adoptiveparents. The purpose of this research was to provide background information as part of evidence gathering in preparation for taking my case to the Family High Court in London, but later grew into something much bigger – a campaign to get the law changed.
I had been trying to accessoriginal birth information about my father from the time of his death in 1999. No organisation had been able to help me because the Adoption Act only provided for the birth records of an adopted person to be disclosed in limited circumstances, being:
- Where the adopted person had applied in their lifetime or
- Where records were held by an adoption agency, which could decide whether disclosure was in the interests of all concerned.
Descendants of adopted people had sometimes been able to obtain information from adoption agencies, but this depended on knowing either the adopted person’s birth name or the agency which facilitated the adoption. If this birth name information was not known, the only avenue open to a descendant was an application to the Court under s79(4) for an order that the Registrar General give the descendant information which would enable him to obtain the adopted person’s birth certificate. The Court could only exercise this power in exceptional circumstances. I was not sure that I had ‘exceptional circumstances’at that time and so I chose to wait patiently for the amendment to the 2002 Act to be implemented at the end of 2005, knowing that the intention of the revision of the Act was to allow greater access to birth information for ‘birth relatives’. Thereafter, I was shocked, to learn that the definition of a ‘birth relative’*in the Act, excluded descendants and I hit another ‘brick wall’. I thought this exclusion was unjust and that was what started me on this quest.
*Definition of a birth relative
A relative of an adopted person was defined in s98 of the Adoption & Children Act 2002 as any person who (but for the adoption) would be related to him by blood or marriage.
This definition highlighted anomalies, for example: it allowed a birth mother to apply for information about an adopted person, from which she could trace a genetic grandchild, but did not allow that grandchild to obtain information which would allow him to identify his genetic grandmother.
It was arguably more important for a descendant of an adopted person to be able to access information about their parent’s background (which is also their own genetic heritage) than it was for a member of the birth family, who might have no genetic link, to be able to trace a ‘lost’ child, but at that time, no provision was made for them.
So! I tested my case in the Family High Court in 2010
Judgment went against me, but in his summing up,the Judge, Mr Roderic Wood, said that it was not a matter for the Courts to decide, but it was for Parliament to change the law. After receiving this devastating blow; on behalf of all direct descendants of deceased adopted persons; with the help and support of my solicitor, Richard White and Julia Feast OBE, Policy Research & Development Consultant from the British Association for Adoption and Fostering, we picked ourselves up and started to campaign for a change in the law.
This campaign had many ups and downs along the way, the activities included, for example, members of the Descendants of Deceased Adopted Persons(DAP) Group writing to MPs and Ministers, but receiving the standard reply that Government had no plans to change the law; the Law Commission considering our project worthwhile, but not having the resources to take it forward for reform, and so on.
The Law Commission
DAP collaborated with BAAF to facilitate change in the Adoption Act of 2002 and hope was placed in the Eleventh Programme of Law Reform process of the Law Commission. Disappointingly, we learntthat in spite of the Commission’s recognition that this was an important area and the technical issues were suitable for the Law Commission, the project was not being taken forward solely on the grounds that the Commission did not have the capacity to include this work in its Eleventh Programme.
Please see points 3.56 and 3.57 page 37 of 46 -
Department for Education
We were encouraged by the level of support shown by the Department for Education for this project [adoption fell under that Department] and we endeavoured to persuade Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, to include the four small words that we would like changed in the Adoption Act, to give descendants the same rights as others, when his Department was making other planned changes to the Adoption Act in the coming year.
BAAF prepared a statement,the following is an extract, which highlighted the recommended change:
Access to Information for Descendants of Adopted People
We propose that this unfair situation be remedied by amendment of:
S98(1)(a) of the Adoption and Children Act 2002 to read:
“assisting persons adopted before the appointed day who have attained the age of 18
and their direct descendants to obtain information in relation to their adoption”.
S2 of the Pre-Commencement Regulations could then be amended to read:
“ ‘applicant’ means an adopted person, their direct descendants or a relative of an adopted person who makes an application under regulation 5.”
DAP agreed that, if it was thought necessary ‘direct descendant’ could be defined and/or limited to child or grandchild of the adopted person. This would not have conferred a right to any information; merely allowed access to an intermediary service which was already available to other birth relatives. Intermediary agencies have discretion, following guidance, on whether it may be appropriate to search for any person or to provide any information.
This change in the Act would achieve what we, as descendants, wanted – that is access to personal identifying information about our adoptive relatives, albeit through an intermediary, but retaining a certain amount of confidentiality, which would satisfy those who held the view that adoption is a private matter.
Support and Action
We received a lot of support for the amendment, including many major adoption organisations, such as Barnardo’s, Coram and Salvation Army, and Julia Feast said: “Amending the law to give direct descendants of deceased adopted the same rights as other birth relatives to intermediary services, is something that BAAF fully supports. Local authorities and adoption agencies have been providing safe, efficient and cost effective intermediary services for many years, and extending this opportunity to descendants is unlikely to have a huge impact.”
Nick de Bois MP raised the matter in the House of Commons; met with the Minister to explore the opportunities and recommendation by the Lords Select Committee on Adoption Legislation and the issue was debated in the Children & Families Bill, Committee Stage, in the House of Lords, on Wednesday 9th October 2013.
The Proposed Amendment to the Children and Families Bill
After Clause 6
Insert new clause
(1)Section 98 of the Adoption and Children Act 2002 is amended as follows.
(2)Omit paragraph (a) of section 98(1) and insert –
“(a) assisting
(i)persons adopted before the appointed day
(ii)the descendants of persons adopted before the appointed day
who have attained the age of 18 to obtain information in relation to the adoption of the adopted person”
Baroness Hamwee, Baroness Butler-Sloss and Baroness Howarth argued strongly in favour of an amendment that would revise the Adoption Act 2002 to include descendants, however, Government was still resisting change and it was clear that they were misunderstanding the proposed reform. The amendment was withdrawn, but Lord Nash agreed to meet Baroness Hamwee and there was hope that it could be brought back at the Report Stage.
We have done it!
After all the years of campaigning, this was the Christmas present we had all been waiting for:
Lord Nash announced in December 2013 that government was delighted to be addressing the problem of the anomaly in the Adoption and Children Act and went on to introduce an amendment to the Children and Families Bill that would allow those ‘in the dark’ about their family history, whether for heritage, medical or identity to seek information through intermediary services.
The Bill was due to receive Royal Assent early in 2014 and after that there would be a 12 week period of consultation, and Lord Nash said there would be minimum delay.
At this stage we were very excited and grateful to Lord Nash, Baroness Sally Hamwee, Baroness Butler-Sloss, the Law Commission, Julia Feast and the BAAF team, with special mention of Richard White, my consulting solicitor, who faithfully guided me through this confusing process plus the many Members of Parliament who supported us, particularly Nick de Bois. We thanked them all.
The Consultation Process
Government wished to consult on a number of questions including the precise definition of who should have access to intermediary services and the impact on relevant agencies. We hoped that the process would only take the suggested 12 weeks, but the deadline for publication of the Regulations kept moving.
Finally, on 25 September 2014, the Department for Education and Edward Timpson MP published a press release:
“Children, grandchildren and other relatives of adopted adults can now trace back through their ancestors’ lives.
- The government has today published new rules to make provision for intermediary services to facilitate contact between ‘persons with a prescribed relationship’ and the birth relatives of a person adopted before 30 December 2005.
- The regulations will define ‘persons with a prescribed relationship’ as anyone related to an adopted person by blood (including half-blood), marriage or civil partnership or by virtue of the adoption. This will include all relatives of the adopted person, including but not limited to the children and grandchildren of adopted persons.
The regulations will ensure that that the consent of the adopted person is obtained before contact or information sharing is facilitated between persons with a prescribed relationship and birth relatives, other than:
- where a person with a prescribed relationship seeks non-identifying medical information from birth relatives of the adopted person and this can be shared by the intermediary agency without sharing identifying information
- where a person with a prescribed relationship wishes to make contact with a birth relative and the adopted person cannot be found, despite all reasonable steps having been taken
- where the adopted person has died or lacks capacity
The ‘Intermediary services for relatives of adopted people’ consultation is now available.
The new rules will come into force by November 2014.”
However …
When intermediary agents started the application process it was clear there was a problem and the Regulations had to be withdrawn due to a technical error which meant that the Registrar General was unable to disclose the original birth information to relatives necessary to give effect to the clear intention of Parliament.
DAP was advised that it was a simple matter to correct the wording of the Regulations and that this would be attended to in January 2015, but the deadlines came and went and we found it very hard to believe that this would ever be resolved. The DfEsaid they had other urgent priorities and had decided to postpone laying the amendment to SEPTEMBER 2015 as a result of other issues being identified that were not evident before. Why had these come up now? What relevance did they have to the matter in hand? We failed to understand the justification or necessity to wait.
To be delayed a year for the correction of a technical error to give effect to the clear intention of Parliament, was unconscionable.Most of the people seeking this information were looking at adoptions which took place before 1975, and some back into the 1920s and 30s, and their birth relatives were long since dead. We therefore could not tolerate any further delay in correcting the error in the 2014 Regulations. We called on Government to reconsider its position and arrange for the regulations to be implemented as a matter or some urgency.
We were informed by Claudia Rodrigues of the Adoption and Family Law Division at the Department for Education, that they were making this a priority and were keen to get the new regulation laid down. She said in her e-mail of 18 August 2015:
“We were sorry to hear of the closure of BAAF. Please be assured that the Government remains committed to implementing the amendment to the Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005, which will be laid in September.
The amendment will allow the GRO to release information from the birth register to an intermediary agency. A revision to the GRO AF5 form would not be sufficient because current law does not allow GRO to share this information. Currently people with a prescribed relationship to a person adopted before 30 December 2005 are able to apply to an intermediary agency for help in facilitating contact with the birth relatives of the adopted person.Where, however, the prescribed person does not know the birth name of the adopted person, it can prohibit the intermediary agency from tracing the adoption agency involved in the adoption or the birth relatives of the adopted person in order to facilitate that contact.
The purpose of the amendment is to allow the GRO to disclose information from the birth register to intermediary agencies acting on behalf of ‘prescribed people’ applications. Intermediary agencies will then be able to use information from the birth register to trace birth relatives and facilitate contact between the ‘prescribed person’ and the birth relative.
The amendment does not allow the GRO to disclose birth information directly to the ‘prescribed person’ applicant as this would be in breach of section 79(3) of the Adoption and Children Act 2002. Current regulations already allow intermediary agencies discretion to disclose identifying information without consent of the subject if they are deceased or the agency determines that he is incapable of giving informed consent. Existing safeguards about appropriate release of information remain the same.”
Conclusion
At the time of writing, mid-September 2015, there is no conclusion. BAAF closed down at the end of July 2015 and some functions have been taken over by the CoramBAAF Adoption & Fostering Academy and we look forward to receiving the same support from this newly structured organisationas we continue the fight for our rights.
The impact of being able to access birth information is fundamental to descendants’ understanding of their own identity. Not knowing their blood line has a profound impact on their lives.
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