Access to information (Post- commencement Adoptions) (Wales) Regulations 2005

This applies to adopted people on or after 30 December 2005 and the support they can expect.

1. This document is issued under section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social services functions to act under the general guidance of the National Assembly for Wales. As such this document does not have the full force of statute but should be complied with unless local circumstances indicate exceptional reasons which justify a variation. For the purposes of this document reference to the Welsh Assembly Government shall be taken as references to the Welsh Assembly Government acting under powers delegated to it by the National Assembly for Wales.

2. This guidance is issued by the Welsh Assembly Government. It is designed to support the introduction of the Access to Information (Post-Commencement Adoptions) (Wales) Regulations 2005 under the Adoption and Children Act 2002. They apply only to adoptions where the adoption order was made on or after 30 December 2005. The 2002 Act and the regulations provide adoption agencies with a framework within which they are required to consider certain issues before making a decision as to whether to disclose identifying information (that is information which taken alone or with other information could identify someone). The framework should provide for a more consistent approach to the retention, safeguarding and access to sensitive information about a person's adoption whilst recognising and seeking to balance the interests and wishes of all those involved in adoption. This guidance is not a complete statement of law and should be read in conjunction with the Act and the Regulations.

3. Local authorities will need to review their existing policies and practice in the light of the Regulations and this guidance and give the same priority to these responsibilities as to other statutory duties.

The legal framework and scope

4. Sections 56-65 of the Act and the Access to Information Regulations 2005, set out the legal framework for managing and disclosing information in relation to adoptions which take place on or after 30 December 2005.

The regulations specify the information that adoption agencies must keep about the person's adoption; the length of time for which it must be kept; the information that agencies must disclose to an adopted adult on request; and the information that agencies may disclose to adopted people, birth relatives and others who may apply to the agency. The overarching aim of the framework is to ensure greater consistency in the information that adoption agencies keep and the way in which that information is disclosed to adopted people, birth relatives and others involved in a child's adoption.

5. This guidance and the associated regulations – the Access to Information (Post-Commencement Adoptions) Regulations 2005 – provide for a more consistent approach to the retention, safeguarding and access to sensitive information about a person's adoption. They apply only to adoptions where the adoption order was made on or after 30th December 2005. The framework recognises and seeks to balance the interests and wishes of all those involved in adoption. Regulation 15 of the Adoption Agencies Regulations 1983, as amended, and associated guidance will no longer apply in relation to adoptions on or after 30th December 2005.

In relation to persons adopted before that day, the Adoption Agencies regulations 1983 will continue to have effect.

Adopted persons - legal rights

7. Section 60(2)(a) of the Act provides that any person adopted on or after 30th December 2005 can apply to the appropriate adoption agency for information rather than under the arrangements established by the Adoption Act 1976, to the Registrar General. This is because the adoption agency is considered to be best placed to disclose sensitive information, to consult interested parties and to arrange for the provision of counselling and support.

8. Where an adopted adult applies to the adoption agency for the information they need, to obtain a copy of their birth certificate and the agency does not hold this information, Regulation 17 of the Regulations requires the agency to apply to the Registrar General for this information on the adopted person’s behalf. The Registrar General is required by section 79(5) of the Act to give this information to the agency. It is implicit in section 60(2)(a) of the Act that the agency must then pass this information on to the adopted adult, unless the agency considers that the information that an adopted adult needs to obtain a copy of their birth certificate should be withheld. In such a case the agency must apply to the High Court for an order denying the adopted person access to this information (see section 60(3) of the Act).

9. The Court will only grant an order allowing the agency to withhold the information if it is satisfied that the circumstances are exceptional. This provides for those cases where the agency has grounds to believe that disclosing birth record information to the adopted person could place others at risk of harm. This might arise where, for example, a child was placed for adoption as a result of sexual abuse by a member of their birth family and the agency has grounds to believe that disclosing birth record information to the adopted adult could place members of the birth family at risk of serious harm.

10. Section 60(2)(b) of the Act provides an adopted person, on reaching the age of 18, with a right to receive from the adoption agency the information disclosed under section 54 of the Act to the prospective adopters during the adoption process. Regulations under section 9 may require adoption agencies in prescribed circumstances to disclose in accordance with the regulations prescribed information to prospective adopters. This will be the information contained in the report provided to prospective adopters under Regulation 32 (1)(a) of the Adoption Agencies (Wales) Regulations 2005 when the agency is considering placing a child for adoption with a particular prospective adopter.

11. On reaching the age of 18, an adopted person may receive this information from the adoption agency. The agency will need to carefully consider how best to disclose this information to an adopted adult, since it will contain information about their early life and some of this may be upsetting or distressing. Prior to disclosure the agency should consider whether the information should be disclosed in parts over time accompanied by appropriate counselling and support. This may help lessen the impact for the adopted person of receiving potentially distressing information about their early life while still enabling them to fulfil their right to receive the information.

12. Section 60(4) of the Act provides that an adopted adult has the right to receive from the court which made the adoption order, a copy of certain documents relating to their adoption in so far as they do not contain any protected information. These documents are prescribed by the Department for Constitutional Affairs in the Family Procedure (Adoption) Rules 2005 [^{footnote 1}] and include the application form for an adoption order, the adoption order itself and reports made to the court by a children’s guardian, a local authority or an adoption agency.

Section 56 information

13. 'Section 56 information' is the information that adoption agencies are required to keep by virtue of section 56 of the Act and Regulation 3.

It includes:

• The information on the adopted person’s case record that was set up under Part 3 of the Adoption Agency Regulations. This will include information about the adopted person, their natural parents and other birth relatives, the adoptive parents and other persons involved in the adoption.
• The information prescribed by Regulation 3(3) as listed at Annex 1.

14. Section 56 information includes identifying information and background information. Identifying information is any information held by the agency which, whether taken on its own or together with other information disclosed by the agency, identifies a person or enables them to be identified. Any section 56 information which is identifying information is defined by section 57(3) of the Act as 'protected information'.

15. Section 56 information also includes background information which is not protected information. This is information which does not identify any person or enable them to be identified. Section 58 of the Act and Regulation 7 provide an adoption agency with a general discretion to disclose this information as it considers appropriate. This discretion enables the agency to disclose, for example, information to the birth parents about an adopted child’s progress with the adoptive parents without compromising their identity or whereabouts or the identity or whereabouts of the adoptive parents.

Protected information

16. 'Protected information' is defined in section 57(3) of the Act. It covers any section 56 information that is also identifying information and any information obtained by the adoption agency from the Registrar General on an application from an adopted adult under section 79(5) of the Act. It also covers any information kept by the agency about an entry relating to an adopted person on the Adoption Contact Register.

17. An adoption agency may only disclose protected information in accordance with sections 60-62 of the Act and part 3 of the regulations. Section 60 of the Act covers the information that an adopted person, on reaching the age of 18, has the right to receive from the agency (except in exceptional circumstances). Sections 61 and 62 of the Act and Part 3 of the Regulations set out the process that the agency must follow on receipt of an application for the disclosure of protected information.

18. Any person may apply to the appropriate adoption agency for the disclosure of protected information about any person involved in an adoption. Where a person applies to the agency for the disclosure of protected information about an adult, section 61 of the Act applies. 

Where a person applies for the disclosure of information, any of which is about a child, section 62 of the Act applies.

Disclosing protected information about adults (Section 61)

19. When a person applies to the appropriate adoption agency for the disclosure of protected information, none of which involves a child, the agency is not required to proceed with the application unless it considers it appropriate to do so. In reaching this decision the agency must consider the matters set out at section 61(5) of the Act, these are:

• the welfare of the adopted person
• any views of any person the information is about as to the disclosure of the information about him/her
• any prescribed matters
• all other circumstances of the case

20. The agency may determine not to proceed with the application where, for example, it had information to indicate that doing so could be harmful to the welfare of the adopted person and others.

21. Where the agency does proceed with the application it is required by section 61(3) of the Act to take all reasonable steps to obtain the views of the subject of that information (i.e. the person to whom that information relates) as to the disclosure of that information. 

The agency may then disclose the information to the applicant if it considers it appropriate to do so. In determining if it is appropriate to disclose the information, the agency must consider:

• the welfare of the adopted person
• the views of any person to whom the information relates
• all the other circumstances of the case

22. The agency therefore has the discretion to determine whether it will disclose or withhold protected information, contrary to the views expressed by the person the information is about. It could, for example, decide to withhold the disclosure of protected information on the grounds that it was in the interests of the adopted person’s welfare even though the person the information was about had agreed to its disclosure. This discretion may come into play where, for example, one of the birth parents agreed to the disclosure of protected information but the other did not.

Disclosing protected information about children (Section 62)

23. Where a person applies to the appropriate adoption agency for the disclosure of protected information, and any of that information is about a child, the agency again has the discretion not to proceed with the application unless it considers it appropriate to do so. The agency may, for example, decide not to proceed with the application if it considers it to be inappropriate or vexatious. Where the agency determines to proceed with the application it must first take all reasonable steps to obtain the views of:

• any parent or guardian of the child
• the child, if the agency considers it appropriate having regard to the child’s age and understanding, as to the disclosure of the information and to all other circumstances of the case. The second bullet above could apply where, for example, the child is 'Gillick competent' that is that a child achieves sufficient understanding and intelligence to enable him/her to fully understand what is proposed.

24. Therefore, where the information concerns an adopted child, the agency must take steps to seek the views of the adoptive parents. In deciding whether the information should be disclosed, section 62(6) of the Act requires that the adopted child’s welfare must be the agency’s paramount consideration. Where a person applies to the agency for information which identifies both an adult and an adopted child, the agency must also take reasonable steps to obtain the views of the adult as to the disclosure of that information. However, notwithstanding those views, the adopted child’s welfare must continue to be the agency’s paramount consideration in deciding whether to disclose the information.

25. The agency may then disclose the information if it considers it appropriate to do so. In deciding if it is appropriate to disclose the information, where any of the information is about a child:

• if the child is an adopted child, their welfare must be the paramount consideration
• in the case of any other child, the agency must have particular regard to their welfare

26. The agency must also consider:

• the welfare of the adopted person (where the adopted person is not a child)
• any views obtained, including the views of any parent or guardian of the child (and the views of the child if appropriate)
• all the other circumstances of the case

27. The Act requires that, in any decision relating to the adoption of a child, the paramount consideration is the child’s welfare throughout his life.  Although the adoption agency has the discretion to disclose protected information if it considers it appropriate to do so, its discretion is more limited where that information concerns a child. Protected information will only normally be disclosed where the agency is satisfied that it is in the interests of the child’s welfare to do so. The agency must take all reasonable steps to obtain:

• the views of any parent or guardian
• the views of the child, if the agency considers it appropriate to do so having regard to the age and understanding of the child, and all other circumstances of the case

Counselling

28. Both the Act and these regulations recognise the important role that counselling can play in helping adopted people, birth parents, birth relatives and others come to terms with the disclosure of sensitive information about themselves and their past, particularly where this has involved trauma and disruption. Although the Act does not require any person to undergo counselling, these regulations require adoption agencies to provide information about the availability of counselling services to those persons listed in the regulations (see regulation 14 of the Regulations).

29. The agency is also required to provide counselling, or secure the provision of counselling, where a person has requested it (see Regulation 15).

Fees

30. The Act and these regulations also make provision for the charging of fees by adoption agencies in connection with the disclosure of information and the provision of counselling. An adoption agency has the discretion to charge a fee to any person, other than an adopted person, [^{footnote 2}] to cover any reasonable costs incurred in processing an application for the disclosure of information. Giving agencies the discretion to charge a fee recognises the additional work that they are required to undertake by sections 61 and 62 of the Act, including the requirement to seek the views of any person who may be identified by the disclosure of protected information.

This part of the guidance explains:

• Regulation 1: Title, commencement and application
• Regulation 2: Interpretation

Title, commencement and application - Regulation 1

30. Regulation 1(1) states that the Regulations may be cited as the Access to Information (Post-Commencement Adoptions)(Wales) Regulations 2005 and shall come into force on 30 December 2005.

31. Regulation 1(2) states that the Regulations apply to Wales only

Interpretation Regulation 2

32. Regulation 2 provides definitions of terms used in the Regulations.

Definitions:

• 'the Act' means the Adoption and Children Act 2002
• 'the Adoption Agencies Regulations' means the Adoption Agencies (Wales)Regulations 2005 [^{footnote 3}]
• 'adopters' in the case of an adoption by one person means that person
• 'birth parent' in relation to an adopted person means a person who, but for the adoption, would be his or her parent
• 'birth relative' in relation to an adopted person means a person who, but for the adoption, would be related to him or her by blood (including half blood) or marriage
• 'CAFCASS' means the Children and Family Court Advisory and Support Service
• 'registered adoption support agency' means an adoption support agency in respect of which a person is registered under Part 2 of the Care Standards Act 2000 [^{footnote 4}]
• 'section 56 information' means any information prescribed by regulation 3.

This part of the guidance explains:

• Regulation 3: Information to be kept about a person's adoption
• Regulation 4: Storage and manner of keeping of section 56 information
• Regulation 5: Preservation of section 56 information
• Regulation 6: Transfer of section 56 information

Information to be kept about a person's adoption - Regulation 3

33. This part of the regulations imposes a general duty on the adoption agency to keep certain information in relation to a person’s adoption. Regulation 3 clarifies to which agency this general duty will apply. Generally, the case record for the adopted person, established under part 3 of the Adoption Agency regulations, will continue to be kept by the adoption agency that placed the child for adoption. Where that agency has ceased to operate or exist, the agency to which the case records are transferred becomes subject to the requirement to keep the information about the person’s adoption prescribed by Regulation 5.

34. Where an adoption order has been made by the court, Regulation 3 specifies the information that the adoption agency must continue to keep in respect of that person’s adoption. The information prescribed by Regulation 3 is referred to as “section 56 information”. Section 56 information encompasses both identifying information and background information about the persons involved in the adoption. Identifying information is defined at section 57(4) of the Act as 'Information which, whether taken on its own or together with other information disclosed by an adoption agency, identifies the person or enables the person to be identified'.

35. Identifying information kept by the agency will be wide ranging. It will include information about:

• the adopted person
• the birth parents
• other birth relatives such as aunts, uncles and siblings
• the adoptive parents

It will also include about others involved in the adoption such as the child’s former  carers, professionals involved in assessments and social workers who may have been involved with the child. Identifying information may comprise of:

• Names
• Residential addresses
• Education and employment addresses
• Legal and medical information
• Photographs or audio-visual material

36. Background information will be information kept by the agency which does not identify any person or enable them to be identified. It will include for example:

• the child’s birth details and medical history, excluding any identifying details
• information about the child educational needs and progress
• details of hobbies and interests
• other contextual information

37. It is information, which the adoption agency should disclose to the adoptive parents to help them care effectively for the child and address any specific needs. It could also be information, which the agency may disclose to the birth parents, or other birth relatives, to inform them about the adopted child progress in the adoptive family without revealing the child new identity or whereabouts or the identity or whereabouts of the family.

38. Regulation 3 (1). This part of the guidance explains the regulations that require adoption agencies to maintain and preserve the information it holds about an adoption in relation to a person adopted on or after 30 December 2005 under section 56 of the Act, once the adoption order has been made. The regulations set out the section 56 information that must be retained, how this information should be stored and the length of time for which it must be preserved. The regulations also set out the circumstances in which the adoption agency may transfer section 56 information to another adoption agency, subject to the prior approval of the registration authority.

39. Section 56 information will be information about the adopted person, birth parents and other birth relatives, the adoptive parents and siblings. It will also include medical reports obtained by the agency and other information, such as the names of social workers who managed or worked on the adoption case. Section 56 information covers both identifying information and background information. Identifying information is defined at section 57(4) of the 2002 Act as information about a person which, whether taken on its own or together with other information disclosed by an adoption agency, identifies a person or enables a person to be identified. It may include names, residential addresses, educational or employment addresses, legal and medical information, photographs or audio-visual cassettes. It may also be information a birth relative has asked to be kept, such as correspondence from the birth mother about the circumstances leading to the child's placement for adoption.

40. The background information covered by section 56 will be information that does not identify a person or enable them to be identified. This might include the adopted person’s birth details, such as birth weight or time of birth, information about progress at school or any special needs. It is largely contextual information that will help inform the adoptive parents in caring for the child and addressing any specific needs. It is also information which the adoption agency may disclose to birth relatives about the child's progress and well being without revealing the child's new identity or whereabouts, or the identity of the adoptive parents.

41. The Adoption Agencies (Wales) Regulations 2005 set out the information that is to be obtained by the adoption agency and placed on the respective case records for the child and the prospective adopters as the plan for the child’s adoption develops. Once the adoption order has been made, Regulation 3(2) places a requirement on the appropriate adoption agency to continue to maintain the case record that was set up for the child and compiled by virtue of Part 3 of the Adoption Agencies (Wales) Regulations.

42. The appropriate adoption agency will either be the agency that placed the child for adoption or the agency to which records have been transferred by virtue of Regulation 6.

43. Regulation 3(2) When an adoption order is made in relation to a person adopted after 30 December 2005, the adoption agency that placed the person for adoption, or, to which the case records in respect of the adopted person have been transferred, must continue to keep the case record that was set up in respect of the adopted person under Regulation 12 of the Adoption Agencies (Wales) Regulations 2005 or under the Adoption Agencies Regulations 1983.

44. Regulation 3(3) sets out the information that an adoption agency must also keep, as follows –

a) any information that has been supplied by a birth parent or other birth relative of the adopted person, or other significant person in the adopted person’s life with the intention that the adopted person may, should he or she wish to, be given that information. This regulation covers circumstances where a birth parent or birth relative has deposited information with the adoption agency with the intention that the adopted person may be given this information, should he or she wish to receive it. For example, it may include correspondence from the birth parents or wider birth relatives. It is not uncommon for a birth mother to deposit a letter with the adoption agency for the adopted person, explaining her feelings about the child's adoption. Such information may also include objects or mementos relating to the child's early life. For example, a family photograph album or audio visual cassettes.

b) any information that has been supplied by a former foster carer of the adopted person with the intention that the adopted person may, should he or she wish to, be given that information. After the adoption order has been made, the foster carer, who may have played a significant part in the child's life may wish to deposit information with the adoption agency, with the intention that it is passed on to the adopted person at an appropriate time in their life.

c) any information supplied by the adopters or other persons which is relevant to matters arising after the adoption order has been made. This might cover information about the child's progress and development in the adoptive placement. Where this is non-identifying information it could be passed by the agency to the birth relatives. This regulation also covers information relating to other issues that may arise after the adoption order has been made. The agency is under a duty to keep such information on the child's case record.

d) any information that the adopted person has requested should be kept. This regulation requires the adoption agency to keep on the case record any information supplied by the adopted person after the adoption order has been made, such as their views as to the disclosure of information about themselves or their wishes as to contact, or no contact, with a birth relative.

e) any information given to the adoption agency in respect of an adopted person by the Registrar General under section 79(5) of the Act (information that would enable an adopted person to obtain a certified copy of the record of his or her birth). In those rare circumstances where an adopted person does not know his or her birth name on reaching the age of 18 he may apply to the adoption agency for the information which would enable him to obtain a certified copy of the record of his birth (Section 60(2)(a) of the 2002 Act). Where the adoption agency does not hold this information, it may request it from the Registrar General (Section 79(5) of the 2002 Act). The Registrar General has a duty to disclose this information and the adoption agency must retain it on the adopted person's case record.

f) any information disclosed to the adoption agency about an entry relating to the adopted person on the Adoption Contact Register.Where an adoption agency has received an application for the disclosure of protected information, it is under a duty to take all reasonable steps to seek the views of any person the information is about as to the disclosure of that information. Where the adoption agency is not able to trace a person from the records it holds, it may seek information held by Registrar General on the Adoption Contact Register. If this still did not enable the agency to contact the individual, it may use an entry on the Adoption Contact Register as to contact, or no contact, to inform the exercise of its discretion as to the disclosure. Where the Registrar General discloses information from the Adoption Contact Register to the agency, this regulation requires the agency to retain that information on the case record.

g) any information required to be recorded in accordance with Regulation 9,10,13 or 16. Where an adoption agency has disclosed protected information in accordance with the above regulations, or where it has sought a person's views as to the disclosure of information, this regulation requires the agency to maintain a written record of any disclosure made or any views obtained from an individual. This could also include researching where a birth relative formally registered their views as to the disclosure of information or a wish for future contact, or no contact, with the adopted person in the event that he applied to the adoption agency for access to identifying information. Where a birth relative has provided such information to the adoption agency, this constitutes section 56 information and the agency is also under a duty to retain it as part of the adopted person's case record.

h) the record of any agreement under regulation 10. Regulation 10 sets out the arrangements for making an agreement for the disclosure of protected information to which the adoption agency, the adopters and the birth parents are parties. Such an agreement is intended to ensure that arrangements for open adoptions are clear and unhindered where there is agreement. Some adoptions are now made on an open basis where it is seen to be beneficial for the exchange of identifying information to occur. In other adoptions, contact may be indirect, with the adoption agency passing on letters or birthday cards from the birth family to the adopted child, and the birth family receiving information about the child's progress.

45. Regulation 3(4) defines 'information' for the purposes of this regulation. 'Information' includes information in any form, including paper records, electronic records and photographs. This may also include information stored on microfiche, audio or audio-visual cassettes. Even though this information may be kept separately from the main case record, it constitutes section 56 information and the adoption agency is therefore under a duty to retain it.

46. Regulation 3(5) The adoption agency must keep a record of any objects and mementos that are not retained because they are not reasonably practicable to store.

Storage and manner of keeping of Section 56 information - Regulation 4

47. Regulation 4 requires the adoption agency to ensure that any section 56 information – in whatever format – is at all times closely safeguarded by staff and kept in secure conditions. Appropriate measures should be taken to safeguard against theft, unauthorised disclosure, damage, loss or destruction of or damage to, the section 56 information it holds. The section 56 information held on the adopted person's case record will predominantly be a paper record containing social worker reports, adoption panel papers, legal and medical papers, plus any information supplied by birth relatives or others involved in the adoption. Section 56 information will also comprise information held electronically or digitally or photographs and other mementos.

48. Where section 56 information is stored electronically or digitally, the adoption agency should ensure that adequate systems are in place to protect the integrity and confidentiality of this material. Information stored on PCs should be password protected and where information is stored on floppy disc, CD-ROM or microfiche, these should also be password protected and be securely stored when not in use. The adoption agency should ensure that section 56 information is not transmitted outside the agency by e-mail or facsimile unless its confidentiality can be assured.

49. The adoption agency is required to have in place adequate security arrangements to safeguard this information in its various formats. When not in use, any section 56 information should be stored in a lockable security cabinet or locked room so that it is not accessible to anybody who has no right to see it. Adequate arrangements must also be in place to minimise the risk of accidental damage or damage caused by fire or water. All agency staff with responsibility for safeguarding this information should be clear as to their duties under these regulations. The duties placed on the adoption agency by this regulation also apply to any section 56 information which is not retained on the agency's premises.

50. There is nothing in this group of regulations to prevent an adoption agency from preserving section 56 information on electronic media. Particular care should be taken when transferring original documentation from the adoption case record to electronic formats. The adoption agency should ensure that information that is likely to be significant to the adopted person, such as hand written cards or letters from the natural parents or other birth relatives, should always be preserved in their original format.

51. The adoption agency should keep its security arrangements under review and any breaches in the security of its records should be acted on promptly with steps taken to prevent a recurrence. This should be recorded in the agency's policies and procedures document. All agency staff with responsibility for handling section 56 information should be clear as to their duty to safeguard this information at all times.

Preservation of Section 6 information - Regulation 5

52. Regulation 5 requires the adoption agency to preserve section 56 information for at least 100 years from the date on which the adoption order was made. The requirement to preserve section 56 information also applies to any information that is stored electronically or digitally (or by other means). Where, for example, information is stored on floppy disc or microfiche, the adoption agency must take all reasonable steps to protect against data corruption or damage to ensure that the information is preserved for at least 100 years.

53. Where an adoption agency decides to destroy section 56 information after the 100 year retention duty, the agency must treat this as confidential waste and it should be disposed of accordingly. Sensitive information relating to individuals involved in an adoption should be shredded prior to disposal.

54. In cases where the records relate to a child where the plan for adoption did not conclude with an adoption order being made, or to records of prospective adopters where the agency did not consider them suitable, Regulation 40 of the Adoption Agencies (Wales) Regulations will apply.

An adoption agency must keep the case records for such a period as it considers appropriate.

Transfer of Section 56 information - Regulation 6

55. Regulation 6(1) states that where a voluntary adoption agency proposes to cease to act or exist as an agency it must transfer its section 56 information (and any indexes to that information) to the safekeeping of another adoption agency having first obtained the approval of the registration authority for such transfer:

• transfer the information to the local authority in whose area the society’s principal office is situated
• or in the case of a society which amalgamates with another registered adoption society to form a new registered adoption society, to the new body

Any adoption agency receiving section 56 information by virtue of this regulation will automatically become subject to the duties in these regulations in respect of the safeguarding, preservation and disclosure of that information.

56. Regulation 6(2) A registered adoption society that transfers its records to another adoption agency because it intends to cease to act, or to exist, must, if its activities were principally based in the area of a single local authority, give written notification of the transfer to that authority. This requirement is intended to ensure that clear 'signposting' exists in respect of the former adoption society's case records. It is important that former clients of a registered adoption society that has ceased to operate are able to easily locate that society's case records in the event that they wish to make an application for the disclosure of information. A person may seek information many years after the adoption occurred. Where the adoption agency no longer exists, it is not uncommon for an initial approach to be made to the local authority in the area in which the adoption took place. 

In those cases where a registered adoption society operated within a small geographical area, this regulation is intended to ensure that the relevant local authority can signpost any person seeking the disclosure of information to the adoption agency to which the case records were transferred.

57. Regulation 6(3) requires an adoption agency to which records are transferred, because it intends to cease to act, or to exist, shall notify the registration authority in writing of such a transfer. This is another mechanism by which potential applicants for the disclosure of information may be sign posted to the adoption agency that holds the relevant case records to which they are seeking access.

58. Agencies should have mechanisms to quickly and easily identify where they have stored transferred records they have accepted.

This part of the guidance explains:

• Regulation 7: Disclosure of section 56 information for purposes of agency's functions
• Regulation 8: Disclosure of section 56 information for the purposes of inquiries, inspection etc.
• Regulation 9: Requirements relating to disclosure
• Regulation 10: Agreements for the disclosure of protected information

Scope

59. This section of the guidance explains the circumstances in which an adoption agency may be authorised or required to disclose section 56 information, or may enter into an agreement for the disclosure of section 56 information.

Disclosure of Section 56 information for purposes of agencies functions - Regulation 7

60. Regulation 7(1) provides an adoption agency with the discretion to disclose section 56 information that is not protected information as it sees fit for the purposes of carrying out its functions as an adoption agency. This regulation therefore applies to any section 56 information which does not identify a person or enable them to be identified.

61. Agencies may use their discretion to provide adopted persons with information about the circumstances of their adoption or to disclose information to the adopters with the intention that this is shared with the child. It could, for example, be information passed to the agency by the birth parents which is important for the child's social and educational development and which the agency may pass to the adopters to help them in the care and upbringing of the child.

62. Under this regulation the agency may also provide the birth parents with information about the child's progress with the adopters such as details of educational achievements or other important milestones in the child's life without disclosing the child's new identity or whereabouts or the identity or whereabouts of the adopters. Where the agency exercises its discretion to disclose background information to any person, it should take care to ensure that background information disclosed in isolation does not identify a person when linked with other information previously disclosed by the agency.

The agency is required by Regulation 9 to make a written record of the disclosure of any background information disclosed under Regulation 7(1).

63. Regulation 7 (2) An adoption agency may disclose section 56 Information (including protected information) to a registered adoption support agency which provides services to the adoption agency in connection with any of its functions under section 61 or 62 of the Act (disclosure of information to adults or children). For example, this regulation allows an adoption agency to disclose information about an adopted child's progress with his adoptive family to a birth relative without disclosing the child's new identity or whereabouts or the identity or whereabouts of the adoptive family.

64. The adoption agency may also disclose background information to an adopted person, providing details of their early life or the circumstances that led to them being placed for adoption without compromising the identity of members of the birth family.

65. Where an adoption agency exercises its discretion to disclose background information, it should first consider whether this information disclosed in isolation may identify a person when linked with other information disclosed by the agency. The agency is required by Regulation 9 to keep a written record of any information disclosed by virtue of this regulation.

This should include a description of the information disclosed, the date of disclosure, the person to whom the information was disclosed, any conditions attached to the disclosure and the reason for the disclosure.

66. The responsibility for deciding whether or not to disclose the information will remain with the adoption agency. They may need to consult with their lawyers before making a final decision on whether or not to disclose information.

67. Regulation 7(3) provides that an adoption agency may disclose section 56 information (including protected information) to a person who is authorised in writing by the National Assembly for Wales to obtain information for the purposes of research. It is for the adoption agency to decide whether it wishes to participate in any research, as the National Assembly cannot commit any agency to research activity.

68. An adoption agency may not make section 56 information available to an outside researcher unless he holds a valid authority in respect of that research project. Before the National Assembly’s authority is given, research proposals will be considered carefully to assess whether the potential value of the research justifies disclosure to the researcher. The National Assembly will also need to be satisfied that any information obtained for the purposes of research will be properly safeguarded and its confidentiality maintained. Authorised researchers will be required to sign an undertaking to use any section 56 information obtained only for the purposes of research and may not publish any material which might enable any person involved in an adoption to be identified.

Disclosure of Section 56 information for purposes of inquiries, inspection etc - Regulation 8

69. Regulation 8 sets out the circumstances in which an adoption agency must disclose section 56 information (including protected information) or provide unrestricted access to any section 56 information it holds.

70. Where a request for access to section 56 information falls within the remit of this regulation, the adoption agency has no discretion to withhold the information or to deny access to it. There is a duty on the adoption agency to comply with the request.

71. The circumstances covered by Regulation 8 are:

a) To those holding an inquiry under section 17 of the 2002 Act, section 81 of the Children Act 1989 or section 1 of the Inquires Act 2005 for the purposes of such an inquiry. An inquiry under section 81 of the Children Act 1989, section 17 of the Adoption and Children Act 2002 Act or section 1 of the Inquires Act 2005 may seek the disclosure of section 56 information in relation to a matter before the inquiry. Both section 17 of the 2002 Act and section 81 of the 1989 Act have now been repealed by the Inquiries Act 2005, although existing inquiries under those enactments may continue under transitional provisions contained in the Inquiries Act 2005. Access to, or disclosure of, section 56 information is to be provided on request to any person acting for the inquiry. The inquiry must show that access to section 56 information is necessary for the purposes of taking forward the inquiry. Where the adoption agency has concerns about disclosing section 56 information to the inquiry, for example if the inquiry is being held in public, it should seek the prior written agreement of the inquiry that any information disclosed will be properly safeguarded and that it will maintain the confidentiality of this information.

b) Subject to the provisions of s.74(5) of the Care Standards Act 2000 (disclosure) to the Children’s Commissioner for Wales for the purposes of any examination conducted in accordance with Part V of that Act. Part V of the Care Standards Act 2000 establishes the office of the Children’s Commissioner for Wales whose principal aim is to safeguard and promote the rights and welfare of children to whom that Part applies. By virtue of section 74(1) of that Act, and subject to the Children’s Commissioner for Wales Regulations 2001, the Commissioner may examine the cases of particular children who are receiving or have been in receipt of 'regulated children’s services in Wales'. Such services are defined in section 78(2) of the Act as including 'services provided by local authorities in Wales in the exercise of relevant adoption functions'. Section 74 (5) of the Care Standards Act 2000 provides that no one can be compelled to give evidence or provide information to the Commissioner that he could not be compelled to give or provide in court proceedings before the High Court.

c) To the National Assembly for Wales. There may be circumstances in which the National Assembly for Wales may seek access to, or the disclosure of, section 56 information (and this is provided for in Regulation 8(c). For example, the National Assembly for Wales may seek section 56 information for the purposes of its registration functions under the Care Standards Act 2000 (section 5 of the Act defines the registration authority in relation to Wales as the National Assembly for Wales) and for the purposes of its adoption functions. Part II of the 2000 Act provides for applications by a voluntary adoption agency for registration with the registration authority, and for refusals and cancellations of registrations. So the adoption agency may be required by the registration authority to disclose section 56 information to it in connection with a decision relating to its powers under Part II of the 2000 Act. Chapter 6 of the Health and Social Care (Community Health and Standards) Act 2003 provides the National Assembly for Wales with the general function to encourage the improvement in the provision of Welsh local authority social services and additional powers of entry and inspection of local authorities.

d) Subject to the provisions of sections 29(7) and 32(3) of the Local Government Act 1974 (investigations and disclosure), to the Commission for Local Administration in Wales, for the purpose of an investigation conducted in accordance with Part III of that Act.

72. Regulation 8(1)(d) provides for circumstances where a local commissioner (i.e. the Local Government Ombudsman) is investigating a complaint involving a local authority adoption agency and needs access to section 56 information in order to do so. The office of local commissioner has now been replaced by the office of the Public Services Ombudsman for Wales ('PSOW') by virtue of the Public Services Ombudsman (Wales) Act 2005 ('the 2005 Act'). 

Therefore, requests for access to section 56 information or the disclosure of section 56 information by the PSOW for the purposes of conducting investigations under the 2005 Act should be complied with by a local authority adoption agency if requested. This disclosure provision will only apply to local authority adoption agencies as the PSOW has no powers to investigate the activities of registered voluntary adoption agencies.

a) To any person appointed by the adoption agency for the purposes of the consideration by the agency of any representations (including complaints). Sections 26(3) and 26(4) of the Children Act 1989 require local authorities to establish a procedure for considering representations, including complaints, and for involving an independent person in that procedure. The Voluntary Adoption Agencies and Adoption Agencies (Miscellaneous Amendments) Regulations 2003 require voluntary adoption agencies (VAA's) to establish a complaints procedure. Regulation 11 of those regulations requires the VAA to establish a written procedure and Regulation 12 provides for complaints to be fully investigated. For the purposes of adoption, a service user will be any person listed in section 3(1) of the 2002 Act. Where an independent person has been appointed for the purpose of the consideration of any representations, or complaints, in relation to an adoption, he is likely to need access to section 56 information or the disclosure of section 56 information from the case record. Regulation 8(1)(e) places a duty on the adoption agency to disclose the information requested by the person appointed by the agency to consider the representations or complaints.

b) To a panel constituted under section 12 of the Act to consider a qualifying determination in relating to the disclosure of section 56 information. Section 12 of the 2002 Act provides for an independent review mechanism to review determinations made by adoption agencies about the disclosure of information under sections 56 – 65 of that Act. At present however this provision does not apply in Wales, although regulations will be made in late 2006. In order to review a determination made by an adoption agency, the Independent Review Mechanism may require the disclosure of section 56 information from the case record. Regulations will provide the Independent Review Mechanism with a power to seek the disclosure of section 56 information from the case record. Regulation 8(1)(f) therefore places a corresponding duty on the adoption agency to provide disclosure of section 56 information, where the independent review panel has requested it.

c) To a Welsh family proceedings officer or an officer of CAFCASS for the purposes of the discharge of the officer’s duties under the Act; Where a Welsh family proceedings officer has been appointed to act as a witness, to the signification by any person of any consent to placement or adoption, the officer has the right at all reasonable times to examine and take copies of any records of, or held by, an adoption agency.

d) To a court having power to make an order under the 2002 Act or under the Children Act 1989.

73. Regulation 8(h) requires the adoption agency to provide access to section 56 information to a court which has a power to make an order under the Adoption and Children Act 2002 or under the Children Act 1989. This might occur where, for example, an adoption agency was subject to judicial review or in connection with proceedings brought by the registration authority.

Requirements relating to disclosure - Regulation 9

74. Regulation 9 imposes a duty on the adoption agency to keep a written record of any disclosure made in accordance with Regulations 7 or 8, that is, disclosure of section 56 information, for the purposes of agency’s functions or for the purposes of inquiries, inspection, etc. This is particularly important where the agency has exercised its discretion to disclose Section 56 information under Regulation 7(1), or entrusted protected information to a registered adoption support agency or another adoption agency under Regulation 7(2). 

The agency should maintain an accurate record of the person(s) to whom access or disclosure was provided, together with brief supporting reasons and a description of the information disclosed together with the date on which disclosure took place. The adoption agency may have cause to rely on this information at a later date, for example in the event of a legal challenge in respect of information that the agency had disclosed (or withheld) using its discretionary power.

Agreements for the disclosure of protected information - Regulation 10

75. Section 57(5) of the 2002 Act is intended to allow agreements to be made for the disclosing of protected information. Regulation 10(1) therefore provides for a written agreement to be made for the sharing of protected information:

• between the adoption agency, and a person aged 18 or over at the time the agreement is made about him
• between the adoption agency and the adoptive parent(s) of the adopted person, or
• between the adoption agency and each person who, before the adoption order was made, was a parent with parental responsibility for the adopted person

76. The purpose of such an agreement is facilitate the sharing of protected information. At the same time, it may release the adoption agency from the duty of having to seek the views of any person identified by the disclosure of information, where that person is either the adopted person or any of those parties that have already given their prior agreement.

77. For example, where an agreement had been made and an adopted person applied to the adoption agency for the disclosure of identifying information about a birth parent, the adoption agency would not be required to seek their views as to the disclosure of information where that information was covered by the agreement. Such an agreement may also facilitate arrangements for an open adoption arrangement and the exchange of identifying information between birth and adoptive families where the agency considered that this would benefit the child's welfare and best interests.

78. An increasing number of adopted children will have experienced multiple carers during their time in care and there could be a range of people who played an important role in the child’s life prior to their adoption. A formal agreement in accordance with this regulation would enable any of those persons to formally register their views as to the disclosure of protected information about themselves at some future date. In the event that the adopted person applied to the agency for the disclosure of protected information about that person the agency would not be required to take the steps at section 61(3) and obtain the views of that person to gain disclosure of protected information.

79. Formal agreements for the sharing of protected information between the agency, the adopters and the birth parents are likely to be uncommon. The majority of children being placed for adoption have been the subject of care proceedings and it is not unusual for one or both of the birth parents to be hostile to the plan for adoption. The agency must be satisfied that all parties are fully aware of the effect and the implications of entering into an agreement. It is therefore, a requirement of Regulation 14 (1)(c) for the agency to provide information about the availability of counselling to any person entering into such an agreement. Before making the agreement the agency must also be fully satisfied that it is beneficial to the child's welfare and best interests.

80. The adoption agency must keep a written record of any agreement for the disclosure of protected information and it is required by Regulation 10(2) to include on that record:

• the full name and signatures of the persons who are parties to the agreement
• the date on which the agreement is made
• the reasons for making the agreement
• the information that may be disclosed in accordance with the agreement
• any agreed restrictions on the circumstances in which information may be disclosed

Regulation 10 does not impose a specific duty on the agency to review the agreement. However, where a person's views change or where the agency becomes aware of a change of circumstances of any of the parties it should consider the continuing validity of the agreement and amend or withdraw it as it considers appropriate.

This part of the guidance explains:

• Regulation 11: Manner of application
• Regulation 12: Duties of agency on receipt of application
• Regulation 13: Record of views

Scope

81. This part of the guidance explains how an application for the disclosure of protected information under section 61 (information about adults) and 62 (information about children) should be made to an adoption agency and the steps to be taken by the agency on receipt of an application. Regulations 11 to 13 deal with procedural matters in relations to such applications.

Manner of application - Regulation 11

82. An application to an adoption agency for the disclosure of protected information under section 61 of the Act (disclosing protected information about adults) or under section 62 of the Act (disclosing protected information about children) must be in writing and must state the reasons for the application.

83. Where the applicant is an adopted person, the following information should be provided:

• Current forename(s) and surname
• Name on adoption (if different from current name)
• Date of birth
• Full name of adoptive parent(s)
• Original birth name (if known)
• Date of adoption (if known)

Where the application is from a birth relative of an adopted person or any other person:

• Current forename(s) and surname
• Name of adopted person
• Original birth name of adopted person (if known)
• Relationship to adopted person (if birth relative)
• Date of adoption (if known)

There is nothing in Regulation 11 to prevent a person from registering their intention of applying to the agency for the disclosure of information by other means (i.e. by telephone, e-mail or via the agency's website). But the formal application to the agency must be made in writing and should include the information listed above so as to enable the agency to properly discharge its duties under Regulation 12. In addition to the information listed above, the applicant should also provide brief reasons for making the application. Where the applicant does not provide sufficient information, the agency should seek any additional information it needs from them before determining whether to proceed with the application.

Duties of agency on receipt of application - Regulation 12

84. Regulation 12 sets out the steps that an adoption agency must take on receipt of an application for the disclosure of protected information under sections 61 or 62 of the Act.

85. Regulation 12 requires the adoption agency to take all reasonable steps to:

• confirm the identity of the applicant and of any person acting on his or her behalf and
• confirm that any person acting on behalf of the applicant is authorised to do so and
• ensure that it has sufficient information from the applicant about the reasons for the application to enable the agency to discharge its functions under section 61 or 62 of the Act (as the case may be)

In satisfying itself of the applicant’s identity, the adoption agency may request proof of identity such as a passport, a certified copy of the record of birth or a certified copy of an entry in the Adopted Children Register.

86. In cases where someone is acting on behalf of the applicant, the agency is required by Regulation 12(a) to confirm the identity of any person acting on the applicant's behalf and by Regulation 12(b), to satisfy itself that that person is acting with the proper authority of the applicant. This will normally be in the form of a written authority from the applicant, though authority may be given orally to the agency where it is not possible to do so in writing and this should be recorded.

87. Regulation 12(c) provides the adoption agency with the discretion to seek further information from the applicant about the application to enable it to properly discharge its functions under sections 61 and 62 of the Act. On receipt of an application for the disclosure of section 56 information, the adoption agency must first make a judgement as to whether it intends to proceed with the application. The agency must therefore ensure that it has sufficient information from the applicant to enable it to locate the appropriate case record and make an initial assessment of the merits of the application.

88. In deciding whether to proceed with an application, the adoption agency must first establish if the information being sought relates solely to an adult or if any of the information sought is about a child. Where any of the information being sought is about a child, section 62 of the Act will apply, otherwise section 61 of the Act will apply.

89. In deciding whether to proceed with an application for the disclosure of protected information about an adult, the adoption agency is required by section 61 of the Act to consider:

• the welfare of the adopted person
• any views that the agency may have recorded on the case record as to the disclosure of information
• all the other circumstances of the case

90. In deciding whether to proceed with an application for the disclosure of protected information, where any of that information is about a child, the adoption agency is required by section 62 of the Act to consider the following matters:

• if the child is an adopted child, the child's welfare must be the paramount consideration
• in the case of any other child, the agency must have particular regard to the child's welfare

91. In applications made under section 62 of the Act, the adoption agency must also consider:

• the welfare of the adopted person (where the adopted person is not an adopted child whose welfare must be the paramount consideration)
• any views that the agency may have on the case record as to the disclosure of information
• all the other circumstances of the case

92. The adoption agency will need to have regard to all the relevant background information available to it on the case record in considering all the circumstances of the case. There may be information on the case record to give the agency reasonable cause to believe:

• that the application is inappropriate or even vexatious or
• that the disclosure of protected information may result in an individual being placed at risk of distress or serious harm.

An example of the latter could be where a child was placed for adoption as a result of sexual abuse within the birth family and disclosure of protected information to the adopted person about the birth relative that perpetrated the abuse could place the adopted person at risk of further harm. Similarly, the adopted person may wish to cause harm to the birth relative.

93. The adoption agency is also required by sections 61(5)(b) and 62(7)(b) to consider any views that may already have been provided to the agency by a person as to the disclosure of information about themselves. For example, a person involved in the adoption may already have formally registered an objection to the disclosure of information about themselves. Where views have been recorded on the case record, the adoption agency must give careful consideration to those views in deciding whether or not to proceed with the application and must have very good reasons for overriding those recorded views. Any decision to override any views expressed should be clearly recorded in the case record.

94. Where the adoption agency determines that it intends not to proceed with an application, for whatever reason, it should notify the applicant in writing together with full details of supporting reasons.

Record of views - Regulation 13

95. Where an adoption agency determines that it does intend to proceed with an application for the disclosure of protected information, it is required to take all reasonable steps to seek the views of any person the information is about as to the disclosure of that information under sections 61(3) of the Act, and record this information in writing. This will require the agency to engage in tracing work, using the information it has on the case record and possibly gathering more information, if the agency's current records do not enable it to trace a person. For example, the adoption agency may seek information held by the Registrar General on the Adoption Contact Register. If the agency does proceed with the application, then, so far as the information is about a person who is at the time a child, the agency must take all reasonable steps to obtain the views of:

• any parent or guardian of the child and
• the child, if the agency considers it appropriate to do so having regard to his age and understanding

The agency must give careful consideration to those views and to all the other circumstances of the case, as to the disclosure of the information under Section 62(3) of the Act. Section 62 (4) states that so far as the information is about a person who has at the time attained the age of 18 years, the agency must take all reasonable steps to obtain his views as to the disclosure of the information.

96. Where the adoption agency has been able to trace and contact a person to seek their views, the agency is required by Regulation 13 to ensure that those views are recorded in writing and retained on the case record. The recording of any views by the agency must make it clear whether the person whom the information is about has consented or objected to the disclosure of information. Although the agency retains the discretion to disclose section 56 information, or to withhold it, contrary to the views expressed by the person the information is about, the agency should give careful consideration to that person's views. Where the agency makes a decision about disclosure, it should record its reasons for doing so. It may have cause to rely on that information at a later date.

97. It is also important that the agency retains a written record of a person’s views as to the disclosure of information in the event that the agency receives a further application for the disclosure of information about that person. Those views may inform a decision by the adoption agency as to whether or not to proceed with an application.

This part of the guidance explains:

• Regulation 14: Information about the availability of counselling
• Regulation 15: Duty to secure counselling
• Regulation 16: Disclosure of information for the purposes of counselling

Scope

98. This part of the guidance explains the regulations setting out the framework for the provision of counselling services in connection with the disclosure of information under sections 56 – 65 of the Act. The regulations place duties on adoption agencies to provide information about the availability of counselling, to secure the provision of counselling where a person has requested it, and permits the adoption agency to disclose information for the purposes of counselling.

Information about the availability of counselling - Regulation 14

99. Regulation 14(1) places a duty on the adoption agency to provide written information about the availability of counselling to any person:

• who is seeking information from the adoption agency under sections 60, 61 or 62 of the Act
• this would apply to any person applying to the agency for the disclosure of protected information
• whose views have been sought by the agency as to disclosure of information about him or her in accordance with sections 61(3), 62(3) or 62(4) of the Act.

Where an adoption agency contacts a person to seek the views as to the disclosure of information, it is essential that they fully understand the nature and reasons for the agency’s approach and the implications of any decision to agree or object to the disclosure of protected information to the applicant.

• who enters, or is considering entering, into an agreement with the agency under Regulation 10.

Where the agency is considering setting up an agreement for the sharing of protected information, it is essential that any person who is considering being party to the agreement fully understands its effect, the information that may be shared under the agreement and the implications of their decision.

100. Under sections 56 – 65 of the 2002 Act and these regulations, there is no legal requirement for a person to undergo counselling in connection with the disclosure of information about an adoption. However, experience has shown that counselling can help adopted persons come to terms with the disclosure of information about their background and family history. Counselling may be of particular value for those adopted people whose family history includes distressing events such as abuse or neglect. 

Similarly, where a birth relative is seeking information about an adopted person, the support and advice of an experienced counsellor may help prepare them for some of the difficult issues that may arise during the process of seeking information. Their expectations may be unrealistic and seeking information may bring back painful memories of the circumstances which led to a child being placed for adoption.

101. Regulation 14(2) requires that where the adoption agency provides information about the availability of counselling services, it must also provide written information about any fees that may apply to the provision of counselling. The agency may provide the counselling itself and has the discretion to charge a fee. It could also make arrangements under Regulation 15 (2) for counselling to be provided by another body.

The written information provided by the agency must include details of any fees that may be charged by the body providing the counselling. A fee may be charged to any person, other than an adopted person in the respect of the provision of counselling.

Duty to secure counselling - Regulation 15

102. Where a person mentioned in Regulation 14 (1) requests that counselling be provided for him or her, Regulation 15 (1) places a duty on the adoption agency to secure the provision of counselling services for that person.

103. Regulation 15 (2) provides the adoption agency with the discretion to provide the counselling itself or to make arrangements with other counselling agencies to provide counselling on the agency’s behalf. Where the person is in England or Wales, Regulation 15(2)(a) provides that the adoption agency may make arrangements for counselling to be provided by another adoption agency or a registered adoption support agency.

104. Where an adoption agency intends entering into an arrangement with a registered adoption support agency to provide counselling, the agency will need to verify that the conditions of the adoption support agency’s registration enable it to offer such services. If necessary, the adoption agency may verify the adoption support agency's conditions of registration with the registration authority. The adoption agency will also wish to satisfy itself that the adoption support agency has the necessary skills and experience to take on each individual case, especially those involving difficult or complex issues.

105. Where the person is in Scotland, Regulation 15(2)(b) provides that the agency may make arrangements with a Scottish adoption agency. This may be a local authority or voluntary adoption agency provided it is registered to provide that service (Section 144(3) of the 2002 Act).

Where the person is in Northern Ireland, Regulation 15(2)(c) permits the agency to make arrangements with a registered adoption society or Health and Social Services Board or Trust. Again the adoption agency will wish to satisfy itself that the agency, Board or Trust has the appropriate skills and experience.

106. Where the person who wishes to receive counselling is outside the UK, Regulation 15(2)(d) permits the adoption agency to make arrangements with an overseas counselling provider. The agency will wish to satisfy itself, as far as reasonably practicable, that the provider has the necessary qualifications, skills and experience to provide the counselling service. In most cases, it is anticipated that the person seeking the overseas counselling will make their own arrangements to receive it, being best placed to identify local providers and the fees charged by them.

Where the agency has incurred costs in securing the provision of counselling outside the UK, the agency may require any person, including an adopted person, to pay a fee to cover any reasonable costs incurred in securing the counselling provision. This is the only circumstance in which an adopted person may be required to pay a fee by the agency.

107. In Regulation 15:

• ‘Board’ means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 ^{[footnote 5]}or where the functions for a Board are exercisable by a Health and Social Services Trust, that Trust
• 'registered adoption support agency' means an adoption support agency in respect of which a person is registered under Part 2 of the Care Standards Act 2000.

Disclosure of information for the purposes of counselling - Regulation 16

108. Regulation 16(1) An adoption agency may disclose information (including protected information) which is required for the purposes of providing counselling, to any person with whom it has made arrangements to provide counselling, on its behalf. For example, where an adoption agency has made arrangements with a registered Adoption Support Agency with skilled counsellors, to provide specialist help or to provide more general counselling services.

109. For counselling to be meaningful and beneficial, the person providing the counselling will require access to section 56 information held by the agency. The adoption agency has the discretion to disclose the information it considers necessary for the counsellor to provide effective counselling.

This may be all of the section 56 information that it holds about the adoption. The adoption agency should be mindful that it may be misleading for information about a person's adoption to be disclosed out of context. It is envisaged, therefore, that in most cases the adoption agency will allow the counselling agency unrestricted access to the section 56 information it holds. 

This would enable the counsellor to consider all the circumstances of the case and decide which information would be of most value for the counselling interview(s). The agency should attach conditions or restrictions on the information that may be disclosed by the agency providing the counselling, if it says that the information should not be disclosed.

110. Where an adoption agency has disclosed protected information to a person providing counselling on the agency's behalf, that person must take particular care not to inappropriately disclose any protected information about any person involved in the adoption. For example, where initial counselling is being provided to a person who has applied to an agency for the disclosure of protected information, care must be taken not to disclose any information that may identify a person involved in the adoption. However, where an agency has agreed that section 56 information may be disclosed in accordance with these regulations, the counsellor may disclose it on behalf of the agency.

111. Regulation 16(2) requires the adoption agency to keep a written record of any information disclosed, including protected information, in connection with providing or securing the provision of counselling. The written record should include a description of the information disclosed, the date of disclosure, the person to whom the information was disclosed and any conditions or restrictions attached to the disclosure.

Where the adoption agency has authorised the body providing the counselling to disclose protected information on its behalf, this should be made clear in the written record made under this regulation and should specify what information it has given authority to disclose.

This part of the guidance explains:

• Regulation 17: Seeking information from the Registrar General
• Regulation 18: Registrar General to disclose information regarding the appropriate adoption agency and the Adoption Contact Register

Scope

112. This section of the guidance explains the circumstances in which an adoption agency may seek information from the Registrar General and the information that the Registrar General is obliged to disclose to an adoption agency.

Seeking information from the Registrar General - Regulation 17

113. Regulation 17(1) provides that an adopted person who has attained the age of 18, requests information from an adoption agency under Section 60(2)(a) of the 2002 Act that would enable him or her to obtain a certified copy of the record of his or her birth and the adoption agency does not hold the information, it must seek the information from the Registrar General (Section 79(5) of the 2002 Act). Cases where the adoption agency will not hold this information will be rare but it may arise where, for example, the adoption agency is unable to trace the adopted person's case record or where the records have been damaged or destroyed.

114. The appropriate adoption agency will be:

• if the person was placed for adoption by an adoption agency, that agency or (if different) the agency that holds the records in relation to the adoption
• in any other case, the local authority to which notice of intention to adopt was given (Section 44 of the 2002 Act).

115. Regulation 17 (2) requires an adoption agency that applies to the Registrar General for the information to enable an adopted adult to obtain a certified copy of the record of his birth, to provide the Registrar General with the following information as far as it knows:

• the name, date of birth and country of birth of the adopted person
• the names of that person's adoptive father or mother
• the date of the adoption order

116. On receipt of a written application from the adoption agency, the Registrar General is required under Regulation 18 to disclose the information requested to the adoption agency. It is implicit in Section 60(2)(a) of the Act that this information must then be passed on to the adopted adult by the adoption agency.

Registrar General to disclose information regarding the appropriate adoption agency and the adoption contact Registrar - Regulation  18

117. Under the new disclosure regime in sections 56-65 of the Act, the adoption agency is the main gateway for access to information, including birth record information. A person adopted on or after 30th December no longer has the direct route of access to the Registrar General for the information they need to obtain a certified copy of their birth. Where a person (including an adopted person) wishes to apply to an adoption agency for the disclosure of information but does not know which agency to apply to, they may apply to the Registrar General for the information they need to make contact with the appropriate adoption agency.

118. Regulation 18 (1) places a duty on the Registrar General to disclose information about the appropriate adoption agency to any person (including an adopted person) who is seeking to make contact with that agency and to disclose to that adoption agency, any information it needs about an entry on the Adoption Contact Register.

119. For example, where a birth sibling is seeking information about his brother but does not know which agency arranged his brother's adoption, the Registrar General will be required to inform the birth sibling so that he may apply for information from the appropriate adoption agency.

120. Regulation 18(1)(b) requires the Registrar General to disclose to the appropriate adoption agency any information that it requires, under section 60, 61 or 62 of the Act, about an entry on the Adoption Contact Register.

121. Where the Registrar General discloses information about an entry on the Adoption Contact Register to an adoption agency, he may charge a fee, that he determines to be reasonable, to the agency. Where the Registrar General charges a fee, Regulation 18(2) requires the agency to pay that fee.

122. In this regulation 'appropriate adoption agency' in relation to an adopted person or to information relating to his adoption has the same meaning given by section 65(1) of the Act, namely:

• if the person was placed for adoption by an adoption agency, that agency or (if different) the agency that holds the records in relation to the adoption;
• in any other case, the local authority to which notice of intention to adopt was given (Section 44 of the 2002 Act).

This part of the guidance explains:

• Regulation 19: Offence
• Regulation 20: Fees charged by adoption agencies

Scope

123. This part covers the miscellaneous provisions in the regulations. It states that it is an offence to disclose information in contravention of section 57 of the Act. Regulation 20 prescribes fees that may be charged by adoption agencies in relation to disclosure of information and counselling.

Offence - Regulation 19

124. Regulation 19 states that it is an offence for a registered adoption society to disclose protected information in contravention of section 57 of the Act (restrictions on disclosure of information). The inappropriate disclosure of identifying information could be distressing or could even put individuals, including children, at risk of serious harm. An offence may be subject to criminal proceedings.

125. If guilty of an offence, a registered adoption agency will be liable to a fine not exceeding £5,000. Proceedings will normally be brought by the registration authority. Where an offence is believed to have been committed, proceedings must usually be brought within six months of the commission of the offence (Section 138 of the 2002 Act). This time limit may exceed 6 months where it takes some time for evidence that an offence may have been committed to come to the attention of the registration authority (i.e. the National Assembly for Wales or the Commission for Social Care Inspection).

126. Where a voluntary adoption agency is convicted of an offence, this may also be grounds for the registration authority to cancel the agency's registration (Section 14 of the Care Standards Act 2000, as amended by the 2002 Act).

127. Where a local authority adoption agency discloses information in contravention of section 57 of the Act, the offence may be dealt with under the default power provided for the appropriate Minister in section 14 of the Act. These powers may be applied where a local authority has failed, without reasonable excuse, to comply with any of the duties imposed by the 2002 Act.

Fees charged by adoption agencies - Regulation 20

128. Regulation 20(1) provides an adoption agency with the power to charge a reasonable fee in respect of the disclosure of information under sections 61 or 62 of the Act, for providing counselling in connection with the disclosure of information under those sections; or for making arrangements to secure counselling in accordance with regulation 16, where the counselling is provided by a person outside the United Kingdom. This will be a fee which the adoption agency determines to be a reasonable fee to cover its costs in processing an application for the disclosure of protected information about an adoption, including the work required to trace a person and ascertain their views.

129. The duties imposed by sections 61 and 62 of the Act will require the agency to undertake new work. This will include engaging in research work, contacting individuals, using the information that the agency holds and possibly gathering more information to enable a person to be traced. The agency may carry out this work itself or it could make an arrangement with a registered adoption support agency to undertake this work on its behalf. The adoption agency may also incur costs in providing counselling or in securing the provision of counselling where a person has requested that it be provided.

130. Regulation 20 (2) makes an exception of the payment of a fee, where the applicant is an adopted person or the subject of an application applying for information about any person who, but for his adoption, would be related to him by blood, including half-blood or marriage, in which case a fee may not be charged. It is intended that an adopted person will receive these services free of charge.

131. Regulation 20(2) provides that the adoption agency shall not charge an adopted person a fee for:

• any information disclosed to him under sections 60, 61 or 62 of the Act in relation to any relative of his or her or for counselling provided to him or her in connection with any such disclosure.

132. Although Regulation 20 provides the adoption agency with the power to charge a fee, the agency retains the discretion to waive its fees – in whole or in part – for example, where the person seeking information is a birth relative in receipt of income support or other state benefits.

133. Regulation 20(3) requires an adoption agency to make available information about the fees it may charge to any person seeking the disclosure of information from the agency. It is important that service users are made aware of any fees that may apply in processing an application for the disclosure of protected information. The agency may incur costs in tracing a person to seek their views on disclosure, obtaining information from the Registrar General, gathering additional information where the adoption agency records do not enable it to trace an individual, and securing the provision of counselling. The adoption agency should advise any service user that it may charge a reasonable fee to cover any costs incurred in processing an application under the access to information provisions at sections 56 – 65 of the Act.

134. Fees will vary over time. Where an adoption agency produces a fixed schedule of fees it must therefore ensure that this is regularly updated and made available to any person who approaches the agency seeking the disclosure of information under sections 56 – 65 of the Act.

Regulation 3(3)

The adoption agency must also keep:

(a) any information that has been supplied by a birth parent or other birth relative of the adopted person, or other       significant person in the adopted person's life with the intention that the adopted person may, should he or she wish to, be given that information.

(b) any information that has been supplied by a former foster carer of the adopted person with the intention that the adopted person may, should he or she wish to, be given that information.

(c) any information supplied by the adopters or other persons which is relevant to matters arising after the adoption order has been made.

(d) any information that the adopted person has requested should be kept.

(e) any information given to the agency in respect of an adopted person by the Registrar General under section 79(5) of the Act (information that would enable an adopted person to obtain a certified copy of the record of his or her birth).

(f) any information disclosed to the adoption agency about an entry relating to the adopted person on the Adoption Contact Register.

(g) any information required to be recorded in accordance with Regulation 9, 10, 13 or 16.

(h) the record of any agreement under Regulation 10.

[1] SI 2005 No.2795 (L22)

[2] Adoption and Children Act 2002 section 64 (5)

[3]  SI 2005 No. 1313 (W.95)

[4] Care Standards Act 2000 Chapter 14 Part II

'the registration authority' means the National Assembly for Wales

'Welsh family proceedings officer' has the meaning given in section 35(4) of the Children Act 2004

[5] SI 1972/1265 (N.I.14)