XIII. Getting to Know Your New Child, Page 2

Some Legal Notes about Confidentiality and Disclosure

The following notes are based on handouts from a British Association for Adoption and Fostering Legal Group seminar held in April 2002. While I have tried to be faithful in interpreting and presenting them, I am not a lawyer and you should definitely not take the following paragraphs as having any legal force. If you have questions about disclosure of information by your adoption agency, do not rely on this section as authoritative: see a lawyer.

The two main Acts of Parliament in force in November 2002 relating to the disclosure of possibly confidential information to prospective adopters are the Adoption Act 1976 and the Data Protection Act 1998. In addition, common law, the Adoption Agencies Regulations 1983 and other Acts and European legislation are important.

Under current legislation a breach of confidence happens when information about one person (the subject) is given to another person without the subject’s consent, and the information is used by the second party to damage the subject. Information which might normally be considered confidential can, if relevant, be disclosed to someone else without the subject’s consent for a number of reasons, including for medical purposes. In the case of a child, information given in confidence by one person about the child, or which impacts on the physical or mental health of the child, can be disclosed to the child’s doctor or someone with parental responsibility. Prospective adopters, do not have parental responsibility until the child is physically placed with them for adoption. Disclosure of confidential information must obviously be done with care and discretion to avoid harm to the person disclosing it and to avoid causing a breach of trust between the agency and the person who originally gave the information to the agency.

An adoption agency has a legal obligation to provide the prospective adopters with appropriate information, according to the circumstances of the individual case and the availability of the information. Withholding information as a matter of course is not permitted: the agency is supposed to consider each item of information individually and start with an assumption in favour of disclosure: the information should only be withheld when there are compelling reasons for doing so, relating to the rights of confidentiality and fears of substantial harm being done to the person originally giving the information to the agency or other people involved in the case. Disclosure can be refused only on substantial grounds, not trivial ones. It is clear from recent court cases that agencies are not currently operating with a bias in favour of disclosure, and they should be challenged to demonstrate that they have the right to withhold information.

It is expected that under the Adoption and Children Act 2002 prospective adopters will be eligible to have information about the child in three stages. The information must be full and appropriate, and be given before the adoption order is granted.

Stage 1: When prospective adopters are first presented with a child whom the social worker thinks would be a good match for them, they will get a summary report, to help them decide whether to consider the child. This is likely to be very short.

Stage 2: Before the match is presented to the Adoption Panel, the adopters will get a much fuller report on the child: all the information they need to decide whether to go further, including a full description of the child’s history, needs, problems, progress, personality and behaviour, supported by medical and educational information.

Stage 3: After the Panel approves the match and it is endorsed by the agency and accepted by the prospective adopters, they will get a written proposal, like a contract, specifying things such as post-placement support (counselling, respite care, financial, etc.) and any contact arrangements for persons from the child’s past: birth family, former carers, etc.

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