Son of man adopted in 1933 granted access to adoption papers

About this case:

• Citation:
  [2022] SC GLW 3
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Andrew Cubie

The applicant, JH, made the application in a bid to learn his birth family name. He had previously had another application refused by a sheriff in hoc statu and provided further material as to allow his second application to be treated as a fresh one.

The application was considered by Sheriff Andrew Cubie at Glasgow Sheriff Court.

No special status

In support of his application, the applicant supplied to the court a letter from an English person who had made a similar application. He also supplied an email from a “DNA Search Angel” which supported the applicant on the basis that information allowing families to be traced by way of DNA was so widely available as to render the confidentiality academic and unnecessary.

It was noted that in terms of the current rules concerning the confidentiality of the adoption process, contained in the Adoption and Children (Scotland) Act 2007, the applicant, as the descendant of an adopted person, had no special status or means of access to their parents’ adoption papers. Under the current rules, the starting point in respect of confidentiality was that the process remained sealed for 100 years, with specific routes for the unsealing of the process available.

In his decision, Sheriff Cubie cited the 2014 case of X (Adopted child: Access to Court file), in which the then President of the Family Division of the English High Court granted an application by the daughter of an adopted man. The court in X granted the application on the basis that the adoption was over 84 years ago, the parties involved were likely all deceased, and any upset which might be caused to surviving relatives of X’s birth mother was speculative.

On this case, Sheriff Cubie noted: “I have drawn at length from the decision in X for two reasons; firstly because of the status of the deciding judge and the weight to be given to his observations about confidentiality in adoption proceedings notwithstanding the different jurisdiction; and secondly because in the application before this court, reference was made by the applicant to correspondence from a supporter who I deduce was the successful applicant in X.”

Without exceptional circumstances

Analysing the current position in Scotland, Sheriff Cubie began: “In the absence of exceptional circumstances, such as a medical query, an application such as this, based primarily on curiosity, cannot succeed during the 100 year restriction period.”

However, noting the time at which the applicant’s father was adopted, he observed: “The adopted person was adopted in 1933. The law at that time was regulated by the relatively new Adoption of Children (Scotland) Act 1930, which came into force on 1 August 1930. Rules were promulgated under the 1930 Act by way of the Act of Sederunt to Regulate Proceedings in the Court of Session or in any Sheriff Court (SI 891 of 1930). I record my thanks to the staff of the sheriff court library service for tracing a copy of the Act of Sederunt.”

He went on to say: “Crucially for the applicant in this case, the period within which the process remains confidential was of a duration of twenty years. The period expired in 1953. Accordingly having regard to the passage of time and the absence of any obvious saving provision, the process can be opened without the need for any exceptional circumstances, or a requirement, to be established.”

Considering whether it was appropriate to disclose the papers, the sheriff said: “The court should still proceed with caution but having regard to the considerations which applied in X as identified by Sir James Mumby, I consider that the court has a wider discretion whether to disclose information contained in the process to an applicant, freed from the constraints of the requirement for confidentiality.”

He outlined the relevant facts as follows: “The applicant is the child of the adopted person; the adopted person and his wife, the applicant’s mother are both deceased. The applicant has no siblings. It is highly likely that the birth mother is deceased. Any upset which might be caused to any surviving relatives of the adopted child’s birth mother is speculative. The adoption was over 88 years ago. The applicant’s reasons for wanting the information are both intelligible and genuine.”

On this basis, the sheriff was satisfied that the application could be granted, and that the applicant could be permitted to see the adoption process relating to his birth father.