Robin Harritt
2005-08-05 16:09:08 UTC
I just thought you'd all be ever so interested in this, it explains what the
law on search and reunion will be here in England after 30 December 2005
You can also download the guidance to the whole Adoption and Children Act
2002 from
http://www.dfes.gov.uk/adoption/update290705.shtml
Happy reading folks.
Robin
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Adoption and Children Act 2002 - Statutory Guidance.
Chapter 10. Intermediary services and access to information in
pre-commencement adoptions
This part of the guidance explains the legal framework governing the
provision of intermediary services to facilitate contact between adopted
adults and their adult birth relatives in respect of any adoption prior to
30th December 2005. The regulations provide a framework within which
intermediary agencies may, on application from an adopted adult or an adult
birth relative of that person, act as intermediaries and, with the consent
of the subject of an application, facilitate contact between them.
In this chapter:
ACCR means the Adopted Children and Adoption Contact Registers Regulations
2005.
AIR means the Disclosure of Adoption Information (Post-Commencement
Adoptions) Regulations 2005.
ISR means the Adoption Information and Intermediary Services
(Pre-Commencement Adoptions) Regulations 2005.
Specific regulation references appear as ISR 6, for example, which refers to
the Adoption Information and Intermediary Services (Pre-Commencement
Adoptions) Regulation 6.
Paragraphs within a regulation are indicated by a point and the number as in
ISR 6.2, with this being regulation 6, paragraph 2. Acronyms and terms are
set out in the Glossary
INTRODUCTION
1 In relation to a person adopted before commencement of the Act on 30th
December 2005, section 98 of the Act and the ISR2005 prescribe a framework
which enables intermediary agencies (ASAs and adoption agencies) to operate
an intermediary service to provide for contact between adopted adults and
their adult birth relatives.
Birth Relatives
2 Section 98 of the Act and the new regulatory framework provides adopted
adults and their adult birth relatives with a right to apply to an
intermediary agency for an intermediary service. Most birth relatives,
including natural parents, will have little or no information which enables
them to seek to trace a person from whom they have been separated by
adoption and establish if they wish to have contact. This framework enables
an intermediary agency to seek information from a range of sources which it
may use to establish the current identity of an adopted adult, to trace them
and subject to obtaining their informed consent disclose identifying
information about them to the birth relative and facilitate contact. The
intermediary agency will have an important role to play in providing
specialist support and advice to all parties throughout this process.
Adopted Adults
3 An adopted adult may apply to an intermediary agency for the same service
should they wish to establish contact with an adult birth relative. Unlike
birth relatives, adopted people have a long established right to obtain
information about their adoption and family history. Schedule 2 of the Act
preserves the legal right of an adopted person, on reaching the age of 18,
to apply to the Registrar General for the information needed to obtain a
certified copy of the record of their birth. Schedule 2 replaces the
existing access to birth records provision at section 51 of the 1976 Act.
Adopted people may also apply to the appropriate adoption agency (see1*
below) for access to their adoption records. This is likely to include
identifying information about their natural parents and, possibly, others
who were involved in their adoption.
4 An adoption agency continues to have the discretion under the AAR 1983 to
disclose the information it considers appropriate to an adopted person. This
regulation has been saved to enable adoption agencies to continue to provide
adopted adults with the information they need about their family history and
origins. This recognises that some adopted adults have no wish for contact
with former relatives but do wish to receive information about their family
history and early life.
1* As defined by section 65(1) of the Act. The appropriate adoption agency
will be the agency which placed the child for adoption or, if different, the
agency which holds the relevant information in relation to that adoption. It
may also be the local authority to which notice of intention to adopt was
given.
5 Most adopted people apply for information from the adoption agency first
before deciding if they wish to go further and actively pursue contact with
a former relative. Some adopted people find it beneficial to undertake their
own research to establish the identity and whereabouts of the person with
whom they wish to have contact. They may then apply to an intermediary
agency, in order to request that it makes the initial approach to that
person. In other cases, the intermediary agency may undertake the research
and tracing on behalf of the adopted person, obtaining the information it
needs from the adoption agency, the Registrar General, the courts or other
public records. The extent of the work undertaken by the intermediary agency
will therefore depend upon the range of information that the adopted person
already holds.
Who May Provide Services?
6 The regulations stipulate that an intermediary service may be provided by
an ASA or an adoption agency (a local authority or VAA). An ASA will need to
be registered under Part 2 of the Care Standards Act 2000 to provide these
services. An adoption agency may choose to provide an intermediary service,
although there is no statutory requirement for it to do so.
7 The regulations confer functions on:
ASAs
Adoption agencies
The courts
The Registrar General.
8 The regulations set out the detail of how intermediary services will
operate and the circumstances in which the bodies listed above will be able
or required to disclose information to each other to facilitate the
tracing of individuals involved in a person¹s adoption.
9 The regulations require intermediary agencies (as defined in ISR 4)to give
priority to applications in relation to adoptions which took place prior to
12th November 1975. This is in part to manage the demand for services, but
also recognises that those birth relatives who relinquished a child for
adoption many years ago, and are now elderly, will benefit from having early
access to services. In relation to adoptions on or after 12th November 1975,
where the intermediary agency has limited capacity it may only accept
applications where it is satisfied that the circumstances are sufficiently
exceptional, such as where the applicant is terminally ill. Where the
intermediary agency does have spare capacity it may routinely accept
applications in respect of adoptions which took place on or after 12th
November 1975.
PROVISION OF INTERMEDIARY SERVICES: ISR 3
10 ISR 3.1 stipulates that an intermediary service under section 98 of the
Act may be provided by an ASA (see 1*) or an adoption agency. The ASA¹s
conditions of registration under the Care Standards Act 2000 must permit it
to provide services under section 98 of the Act.
11 There is no statutory duty on adoption agencies to provide an
intermediary service. AVAA or a local authority that provides such services
is exempt from having to register as an ASA (see 2*)
. However, those local authorities and VAAs that wish to provide
intermediary services should notify the registration authority and, where
appropriate, request the variation of their conditions of registration.
12 ISR 3.2 stipulates that an intermediary service provided by an ASA or an
adoption agency must be provided in accordance with the requirements set out
in the ISR.
13 ISR 3.3specifies that an intermediary service provided in accordance with
the regulations constitutes an adoption support service as defined by
section 2(6) of the Act.
MEANING OF ³INTERMEDIARY SERVICE² AND ³INTERMEDIARY AGENCY²: ISR 4
14 ISR 4.1defines an intermediary service for the purposes of the
regulations as:
(a) assisting adopted persons aged 18 or over, who were adopted before 30th
December 2005, to obtain information in relation to their adoption; and
(b) facilitating contact between such persons and their relatives. An
intermediary service is provided for the purposes of assisting adopted
adults and their birth relatives in obtaining the information they need for
the purpose of tracing a relative (see 3*) and establishing contact with
them. An adopted person aged 18 or over, who was adopted prior to 30th
December 2005, has the right to request an intermediary service to trace and
facilitate contact with a birth relative. An adult birth relative of an
adopted person has the corresponding right where they wish to trace and
establish contact with an adopted adult.
1* As defined in ISR2.
2* Section 8(2) of the Act.
3* Section 98(7) of the Act: ³relative, in relation to an adopted person,
means any person who (but for his adoption) would be related to him by blood
(including half-blood) or marriage.²
15 The provision of an intermediary service will require the intermediary
agency to undertake a range of functions, including:
undertaking preparatory work with the applicant
obtaining information from a range of sources (i.e. adoption agencies, the
Registrar General and the courts)
using that information to trace and contact individuals
acting as intermediary between the applicant and the subject and
facilitating contact between them, and providing counselling, support and
advice.
16 The range of services provided will vary depending upon who makes the
application to the intermediary agency and the information they may already
hold about the person with whom they are seeking contact.
17 Where the applicant is a birth relative of an adopted person it is likely
that they will hold no identifying information (or very scant information)
about the adopted person. The intermediary agency will need to undertake
preparatory work with the applicant on receipt of the application and work
closely with them as it takes forward work to obtain the information it
needs to trace the subject of the application. This will require the
intermediary agency to:
engage in research work
gather information from a variety of sources
contact individuals
provide ongoing support and advice to the applicant, and where appropriate,
the subject of the application.
18 Where the applicant is an adopted adult the manner in which the
intermediary agency processes the application will depend upon the
information already at the applicant¹s disposal. Most adopted adults will
already hold some identifying information about their adoption, including
the information which identifies their natural parents or other birth
relatives. They are likely to have already obtained their original birth
certificate and may have been provided with a range of additional
information, including identifying information, by the adoption agency that
arranged their adoption.
19 Many adopted people have already sought some information about their
adoption before deciding that they wish to pursue contact with a former
relative. Some adopted people will have undertaken their own research and
established the current identity and whereabouts of the person with whom
they are seeking to establish contact. In such cases, they may apply to an
intermediary agency to make the initial approach to that person. Making this
approach is an important part of the intermediary agency¹s role as evidence
shows that without professional support, direct approaches have a lesser
prospect of a successful outcome.
20 It is important, therefore, that on receipt of an application (from an
adopted adult or a birth relative), the intermediary agency establishes, as
far as possible, what information the applicant already holds, what steps
they may already have taken to trace the person(s) with whom they are
seeking contact and their expectations in relation to possible contact. This
will be an important part of the preparatory work with any applicant.
21 ISR 4.2distinguishes between the provision of an intermediary service and
an adoption agency¹s function of disclosing information to adopted adults
about their adoption, their family history and early life. Initially, most
adopted people seek information about their adoption and reflect on this
before deciding if they wish to go further and initiate a search for a birth
relative.
22 Where an adopted person is only seeking information about their adoption,
they should continue to apply to the adoption agency which holds the
relevant case records about their adoption. The adoption agency continues to
have the discretion under AAR 15, 1983to disclose the information it
considers appropriate to the adopted person. The adoption agency¹s function
of providing access to the records it holds does not in itself constitute an
intermediary service for the purposes of section 98 of the Act and the
regulations.
23 Under Schedule 2 of the Act, an adopted person also retains the right, on
reaching the age of 18, to apply to the Registrar General for the
information needed to obtain a copy of their original birth certificate. The
adopted person may use this information as the basis for undertaking their
own search for a birth relative using the public records available to them.
They may then apply for an intermediary service to make the initial approach
to the birth relative with whom they are seeking contact on their behalf.
24 ISR 4.3defines the term" intermediary agency². This term applies in the
ISR to an ASA or an adoption agency that provides an intermediary service in
accordance with the regulations.
APPLICATIONS THAT MAY BE ACCEPTED: ISR 5
25 ISR 5.1specifies the applications that may be accepted by an intermediary
agency 1*. It stipulates that for the purposes of these regulations,
applications may be received: from persons adopted before 30th December 2005
for assistance in contacting a birth relative, or from a relative of a
person adopted before 30th December 2005 for assistance in contacting the
adopted person.
26 In respect of adoptions on or after 30th December 2005, the framework at
sections 56-65ofthe Act and the AIR 2005will apply (see Chapter 11 of this
guidance). 27 ISR 5.2requires an intermediary agency to give priority to
those applications it receives in respect of adoptions which took place
prior to 12th November 1975. It is intended to help intermediary agencies,
the Registrar General and the courts manage demand for these services and to
provide priority access to services for those who have the greatest need.
28 Where the intermediary agency has limited capacity to manage
applications, those applications in respect of adoptions which took place on
or after 12th November 1975 may only be accepted where the intermediary
agency is satisfied that the circumstances are sufficiently exceptional as
to warrant doing so. Cases of genuine urgency will almost always be those
where the applicant is very elderly or terminally ill.
29 Where the intermediary agency does have sufficient capacity to accept
applications, it may routinely accept applications in respect of adoptions
on or after 12th November 1975 if it considers it appropriate to do so.
30 ISR 5.3stipulates that both the applicant and the subject of the
application must have attained the age of 18. Before proceeding with an
application, the intermediary agency should seek to establish, as far as
reasonably practicable, that both the applicant and the subject of the
application are aged 18 or over. Where the intermediary agency accepts an
application, for example from an adopted person seeking contact with a birth
sibling, and the agency subsequently discovers that the subject of the
application is under the age of 18, it must not proceed further with the
application.
1* As defined by ISR 4.
NO OBLIGATION TO PROCEED IF NOT APPROPRIATE: ISR 6
31 ISR 6.1provides the intermediary agency with a general discretion not to
proceed, or continue proceeding, with an application unless it considers it
appropriate to do so. In reaching this decision, ISR 6.2requires the
intermediary agency to have regard to certain specified issues.
32 ISR 6.2.arequires the intermediary agency to have regard to the welfare
of the applicant, the subject of the application and any other person who
may be identified or otherwise affected by the application in deciding
whether to proceed, or continue proceeding, with an application. It must
also have regard to all the other circumstances of the case. Each case will
be different and some will involve additional factors or particularly
complex issues.
33 Where the intermediary service is being provided by the appropriate
adoption agency, it will first need to consider the information available to
it on the case records it holds. If necessary, it may also seek additional
information held by the Registrar General on the Adoption Contact Register
to help inform the exercise of its discretion as to whether to proceed, or
continue proceeding, with the application.
34 For example, where the subject of an application had registered a wish
for no contact with the applicant on the Adoption Contact Register, the
intermediary agency may decide on the basis of that entry not to proceed
further with the application. There may also be information on the relevant
adoption case record to indicate that proceeding with the application could
place the applicant (or the subject) at risk of harm. This may be a factor
where the adopted person was placed for adoption as a result of serious
physical or sexual abuse within the birth family.
35 Where the intermediary agency is not the appropriate adoption agency, it
is first required by ISR 12to establish the appropriate adoption agency, if
possible. It is then required to ascertain the adoption agency¹s views on
the application and any proposed contact between the applicant and the
subject of the application.
36 The adoption agency may express the view, based on the information it
holds, that proceeding with the application could be harmful to the welfare
of the applicant or the subject of the application. The intermediary agency
is required by ISR 6.2.bto have regard to those views. The intermediary
agency may also seek information held by the Registrar General on the
Adoption Contact Register to help inform its decision as to whether to
proceed with the application.
37 In circumstances where: the intermediary agency is unable to establish
the identity of the appropriate adoption agency the appropriate adoption
agency is identified but its records have been lost or destroyed, or the
intermediary agency establishes that no adoption agency was involved in the
adoption, the intermediary agency will have scant information to inform its
decision as to whether to proceed. Thus, it may be useful to seek
information that the Registrar General may hold on the Adoption Contact
Register to inform any decision as to whether to proceed with the
application.
38 In addition to the welfare of the applicant and the subject of the
application, the intermediary agency is also required by ISR 6.2.a.iii to
have regard to the welfare of ³any other person who may be identified or
otherwise affected by the application². This could apply where the subject
was a young adopted adult with younger siblings. The agency will therefore
need to have regard to the welfare of the adoptive parents as well as any
siblings within the adoptive family. Although the intermediary agency is not
routinely required to seek the view of the adoptive parents, it will need to
exercise its discretion as to whether it is appropriate to do so having
regard to the particular circumstances of the case.
39 The views of the adoptive parents will not on their own be decisive but
one of a range of factors to which the agency must have regard in deciding
whether to proceed, or continue proceeding, with the application. However,
where a younger sibling within the adoptive family is under the age of 18,
the intermediary agency is required by ISR 6.3to have particular regard to
his or her welfare. This will be an important factor in the agency¹s
consideration as to whether it is appropriate to proceed, or continue
proceeding, with the application.
40 ISR 6.2.b requires the intermediary agency to have regard to any views of
the appropriate adoption agency in respect of the application and any
proposed contact between the applicant and the subject. The intermediary
agency is required to ascertain these views under ISR 12.The adoption agency
will be best placed to provide advice to the intermediary agency based on
the information it holds.
41 ISR 6.2.c requires the intermediary agency to have regard to any
information it obtains from the Registrar General on the Adoption Contact
Register under ISR 13in deciding whether to proceed, or continue proceeding,
with an application. Where the subject of the application had registered a
wish for ³no contact² on the Register this does not in itself preclude the
intermediary agency from proceeding, or continuing to proceed, with the
application. The intermediary agency may still proceed with the application
if it considers it appropriate to do so. Each case will be different and
must be judged on its merits. That is why the intermediary agency is also
required by ISR 6.2to consider ³all the circumstances of the case².
42 ISR 6.3 requires the intermediary agency to have particular regard to the
welfare of any person mentioned in ISR 6.2.a.iiiwho is under the age of 18.
This regulation will apply where, for example, the subject of an application
is a 19 year old adopted person with a sibling under the age of 18. Although
it will ultimately be for the adopted adult to decide if they wish to have
contact with the applicant, the intermediary agency must also consider the
welfare of the younger sibling in deciding whether to continue proceeding
with the application. The agency may wish to seek the views of the subject¹s
adoptive parents on this issue in coming to its decision. Where the agency
decides to consult them it should make clear that this is an opportunity for
them to make their views known but that they have no right to veto the
application. Where the intermediary agency forms the view that proceeding
with the application would not be in the interests of the younger sibling¹s
welfare, it may decide not to proceed with the application or to proceed
with the application at a later date. 43 ISR 6.4requires the intermediary
agency not to proceed, or continue proceeding, with an application where it
ascertains that the subject of the application is under the age of 18.
CONSENT OF SUBJECT TO DISCLOSURE: ISR 7
44 ISR 7.1prohibits an intermediary agency from disclosing identifying
information to the applicant about the subject of the application without
having first obtained the subject¹s consent. For the purposes of this
regulation, ³identifying information² is defined at ISR 7.4below. This is an
important safeguard which recognises that some adopted persons and birth
relatives have no wish to be traced or to have their details passed on.
45 The requirement to obtain consent is intended to safeguard against the
inappropriate disclosure of sensitive information about the subject which
the intermediary agency has obtained on the applicant¹s behalf and which
would not otherwise be available to the applicant. This will generally be
the identifying information which the intermediary agency obtains from the
adoption agency¹s case records or other information which is not in the
public domain. Therefore, this regulation will not apply to any identifying
information which the applicant already holds, for example, where an adopted
adult has undertaken their own research and has been able to establish the
identity and/or whereabouts of the subject. The regulation will also not
apply to identifying information which could reasonably be obtained by the
applicant from existing public records such as birth, marriage or death
certificates held by the Registrar General or information from the electoral
register.
46 ISR 7.2applies where intermediary agency discovers that the subject of
the application has died or where it determines that the subject is
incapable of giving informed consent. (1*)
47 Where the intermediary agency ascertains that the subject of the
application has died, this regulation provides the discretion to disclose
identifying information about the subject, having first had regard to the
matters specified at ISR 6.2. The intermediary agency must therefore have
regard to the welfare of any other person who may be identified by
disclosing the identifying information about the subject or any other person
who may be affected by the application.
48 Each case will be different but the intermediary agency should, as a
minimum, take steps to seek the views of the deceased person¹s next of kin
before deciding whether it is appropriate to disclose the identifying
information. The agency may also consider it appropriate to seek the views
of persons in addition to the next of kin, such as other family members of
the subject, depending on the circumstances of the case. Having sought the
views of the next of kin (and possibly others) the agency must have regard
to their welfare in deciding whether to disclose the identifying
information. It may then disclose the information to the applicant if it
considers it appropriate to do so.
49 In circumstances where the intermediary agency determines that the
subject is incapable of giving informed consent because of a learning
difficulty or other mental impairment, it is again required to have regard
to the matters specified in ISR 6.2. The agency may again need to seek the
views of others before deciding whether it is appropriate to disclose
identifying information about the subject to the applicant.
50 The intermediary agency will need to establish if the subject has
appointed somebody to act on their behalf, for example, the Court of
Protection, and would have to consult that person or body. Depending on the
circumstances of each individual case, the agency may also wish to seek the
views of others such as the subject¹s spouse or registered civil partner (if
applicable) or other family members. Subject to any views obtained by the
intermediary agency and having regard to the welfare of others identified or
affected by the application, the agency may then disclose identifying
information to the applicant if it considers it appropriate to do so.
1* Informed consent means that the subject fully understands the nature,
circumstances and background of the agency¹s request and the implications of
their decision to give or withhold consent.
51 ISR 7.3requires the intermediary agency to take steps to ensure that any
person whose consent is required has sufficient information to be able to
make an informed decision as to whether to give their consent. This
regulation requires the intermediary agency to provide the subject with
information about the application and the background of the case. The
intermediary agency may also provide the subject with information about the
applicant, their circumstances and the reasons for their application. This
may include information which identifies the applicant, as the subject will
wish to know who is making contact, their reasons for doing so and their
expectations.
52 The process of obtaining consent will need to be handled carefully and
compassionately and the intermediary agency should advise the subject about
such counselling services or other specialist support and advice as may be
available. Finally, the intermediary agency must be satisfied that the
subject fully understands the nature and circumstances of the request for
consent and the implications of any consent decision he or she might make.
53 ISR 7.4defines ³identifying information² for the purposes of this
regulation and for ISR 9and 12. It is defined as information which, whether
taken on its own or together with other information possessed by the
applicant, enables the subject to be identified or traced.
54 Where the applicant is a birth relative it will mainly be the former
(i.e. the information which reveals the current identity of the adopted
person). Where the applicant is an adopted adult, they are likely to already
possess a range of identifying information about the subject of the
application. They will have already obtained a copy of their original birth
certificate from the Registrar General and may have obtained additional
information from other records in the public domain. They may also already
have had access to some information from adoption agency records.
55 The adopted person may have undertaken their own research which enabled
them to establish the current identity and/or the whereabouts of the person
with whom they are seeking contact. They may subsequently apply to an
intermediary agency to make the initial approach to that person. The
requirement to obtain the subject¹s consent will not therefore apply to any
identifying information already held by the applicant. However, where the
intermediary agency obtains any identifying information about the subject
over and above that which is already held by the applicant, and which is not
otherwise publicly available to the applicant, it is required to obtain the
consent of the subject to the disclosure of that information. Where consent
is not given, the intermediary agency will need to make it clear to the
subject that the applicant already holds sufficient information to enable
them to make a direct approach and may choose to do so even if the subject
has indicated a wish for no contact with them.
VETO BY AN ADOPTED PERSON: ISR 8
56 Where an adopted adult has no wish for contact with birth relatives, the
main repository to formally register such a wish will continue to be the
Adoption Contact Register maintained by the Registrar General. Section 80 of
the Act enhances the role of the Register so that an adopted adult or a
birth relative may now formally register a wish for no contact or for
contact. An adopted person may also specify those birth relatives with whom
they do or do not wish to have contact. ISR 6.2requires an intermediary
agency to have regard to any information which may be held on the Adoption
Contact Register in informing its discretion as to whether to proceed, or
continue proceeding, with an application.
57 There will be some cases where an adopted adult has no wish for contact
or to be approached by an intermediary agency on behalf of a birth relative.
There will also be cases where the adopted person only wishes to be
approached on behalf of a specified birth relative or in specified
circumstances. In such cases, ISR 8.1enables the adopted person to register
a formal veto with the appropriate adoption agency.
58 ISR 8.1.bprovides that an adopted adult may formally register an absolute
or a qualified veto. An absolute veto would prevent an intermediary agency
from making an approach in any circumstances A qualified veto would enable
the intermediary agency to make an approach on behalf of a birth relative
specified by the adopted person or in circumstances specified by the adopted
person (for example, where there was information about a hereditary medical
condition).
59 This provision is intended to ensure that where an adopted person has no
wish to be approached by an intermediary agency, that wish for privacy is
respected.
60 Where an adopted person wishes to register a formal veto with the
adoption agency under ISR 8,the adoption agency must first take steps to
verify that the person seeking to register the veto is the adopted person.
Any veto must be an ³informed veto². Therefore, before any veto may be
registered the agency must also be satisfied that the adopted person fully
understands the implications of so doing, particularly where he or she
wishes to register an absolute veto. The agency should explore with them
their reasons for wishing to register a veto and should explain clearly the
effect of doing so. The agency must also make clear to the adopted person
their right to amend or withdraw the veto at any time and the steps to be
taken should they wish to do so. The agency should consider the adopted
person¹s need for counselling in respect of any decision to register, amend
or retract any veto, whether an absolute or a qualified veto.
61 A formal veto is not a life-long veto but will remain in place until such
a time as it is amended or retracted by the adopted person. An absolute veto
under ISR 8.1.b.iwill prevent an intermediary agency from making an approach
on behalf of a birth relative under the ISR. So, for example, where the
birth relative wished to establish contact with the adopted adult because of
a possible hereditary medical condition, the intermediary agency would be
precluded from proceeding with an application under these regulations by
virtue of ISR 8.3. In such cases, the appropriate adoption agency could pass
on the medical information supplied by the birth relative to the adopted
person where it considers it appropriate to do so. The agency must be fully
satisfied that the circumstances are sufficiently exceptional to warrant
contacting the adopted person to pass on this information. In exceptional
cases a person may also make an application to the court under section 79(4)
of the Act for the disclosure of the identifying information held by the
Registrar General on the Adopted Children Register.
62 There may be a small number of cases where a birth relative has been able
to establish independently the identity and/or the whereabouts of an adopted
adult without any assistance from an intermediary agency. They may then
apply to an intermediary agency to make an initial approach to the adopted
person on their behalf. Where the intermediary agency ascertains that the
adopted person has registered a veto it will not be able to make this
approach on behalf of the birth relative (unless the circumstances of the
application matched those specified by the adopted person in any qualified
veto).
63 However, given that the birth relative already holds the information that
would enable them to make a direct approach, the adoption agency that holds
the veto may contact the adopted person to notify them of this fact and
advise them that the veto would need to be amended or withdrawn to enable
the intermediary agency to take forward the application and provide the
necessary expert counselling and support. It should be made clear to the
adopted person that if they do not wish to amend or withdraw the veto, then
the birth relative may choose to make a direct approach.
64 ISR 8.1.b.iienables an adopted person to register a qualified veto. This
enables them to specify the person(s) on behalf of whom an approach from an
intermediary agency would be welcome. For example, an adopted person may not
wish to be approached on behalf of a natural parent but would welcome an
approach on behalf of a birth sibling. 65 This regulation also enables the
adopted person to specify the circumstances in which an approach from an
intermediary agency would be welcome. They could specify, for example, that
an approach would only be welcomed where the intermediary agency was acting
on behalf of a birth relative who had important medical information they
wished to impart or in circumstances involving a bequest from a deceased
birth relative.
66 ISR 8.2requires the appropriate adoption agency to keep a written record
of any veto on the adopted person¹s case record. Where an intermediary
agency contacts the adoption agency under ISR 12to ascertain its views on an
application, it is also required by this regulation to notify the
intermediary agency of the terms of any veto which may have been recorded on
the adopted person¹s case record.
67 ISR 8.3stipulates that an intermediary agency may not proceed with an
application from a birth relative where it is aware that an absolute veto
has been registered by an adopted person under this regulation. Where a
qualified veto has been registered with the appropriate adoption agency, the
intermediary agency may only proceed where the application falls within the
circumstances specified by the adopted person.
PROVISION OF BACKGROUND INFORMATION WHERE CONSENT REFUSED: ISR 9
68 ISR 9will apply where the intermediary agency has been unable to obtain,
for whatever reason, the consent of the subject to the disclosure of
identifying information to the applicant. It will also apply where the
adopted person has registered a veto with the appropriate adoption agency
under ISR 8.
69 This regulation provides the intermediary agency with the discretion to
disclose background information to the applicant if it considers it
appropriate to do so. This could be a wide range of information, provided it
does not fall within the definition of identifying information at ISR 7.4.
It allows the intermediary agency to pass on details of the subject¹s
domestic or family circumstances, their general health and well-being or
other information which may be of value to the applicant. COUNSELLING: ISR
10
70 ISR 10recognises the important role that counselling, support and advice
can play both for the applicant and the subject of the application. It may
help the applicant prepare for the process of tracing a birth relative from
whom they may have been separated for many years. It will also help them to
prepare for positive and negative outcomes, such as feelings of loss or
rejection that may arise where the subject has no wish for contact or has
died. The subject themselves may also need careful support in reaching their
decision as to whether to give their consent to the disclosure of
identifying information.
71 ISR 10.1requires the intermediary agency to provide written information
about the availability of counselling to any person who: (a) makes an
application to the agency; (b) who is the subject of an application and is
considering whether to give their consent to the disclosure of identifying
information.
72 ISR 10.2requires the agency to provide written information about the
persons or bodies offering the counselling and any fees that may apply. It
is anticipated that in most cases, the intermediary agency will provide the
counselling itself, although it may make an arrangement with one of the
bodies listed at ISR10.4.a-dto provide the counselling or specialist support
on its behalf.
73 There is no statutory requirement for the applicant or the subject to
undergo counselling or to receive any other form of support and advice. They
may already have received counselling when applying to the Registrar General
for access to birth records or to the adoption agency for the disclosure of
information about their adoption. However, the valuable role that
counselling and support can play is well established and the intermediary
agency should be proactive in encouraging the provision of counselling to
both the applicant and the subject of the application. Where the applicant
or the subject of the application agree to the provision of counselling, or
request that counselling be provided, ISR 10.3requires the agency to secure
the provision of those services for that person.
74 Where the applicant or the subject has complex support needs which the
intermediary agency considered it could not meet, they may be referred to
their local authority for an assessment of their need for adoption support
services by virtue of the ASR.
75 ISR 10.4gives the intermediary agency the discretion to provide the
counselling itself or to secure the provision of counselling from one of the
following bodies if the person is: in England or Wales, another adoption
agency or an ASA ; in Scotland, a Scottish adoption agency ; in Northern
Ireland, an adoption society which is registered under Article 4 of the
Adoption (Northern Ireland) Order 1987 or any Board ; outside the United
Kingdom, any person or body outside the United Kingdom who appears to the
agency to correspond in its functions to a body mentioned above.
76 Where the intermediary agency makes an arrangement with an ASA under ISR
10.4.a above, it must be satisfied that the ASA¹s conditions of registration
allow it to provide counselling services. If necessary, the intermediary
agency may verify the ASA¹s conditions of registration with the registration
authority. The intermediary agency should also be satisfied that the agency
providing the counselling on its behalf possesses the necessary skills and
experience to do so, especially in particularly complex cases. 77 ISR
10.4.benables the agency to make an arrangement for the provision of
counselling with a Scottish adoption agency. This could be a local authority
or a voluntary organisation registered to provide that service (1*)
78 ISR 10.4.cenables the same arrangement to be made with a registered
adoption society or Board in Northern Ireland. ISR 10.5defines a ³Board² for
this purpose as being a Health and Social Services Board or, where the
functions of a board are exercisable by a Health and Social Services Trust,
that Trust.
79 Where the person who has requested counselling is outside the United
Kingdom or British Islands, ISR 10.4.denables the adoption agency to make an
arrangement with an overseas counselling provider. This is subject to the
proviso that the agency is able to satisfy itself, as far as reasonably
practicable, that the overseas provider possesses the requisite
qualifications, skills and experience to provide the counselling service.
The adoption agency should be satisfied, as far as possible, that the
overseas provider corresponds in its functions to a person or body which may
provide adoption counselling within the United Kingdom.
PROCEDURE ON RECEIPT OF APPLICATION: ISR 11
80 ISR 11stipulates the steps that must be taken by the intermediary agency
on receipt of an application under ISR 5. ISR 11.arequires the intermediary
agency to: take reasonable steps to verify the identity of the applicant or
of any person acting on the applicant¹s behalf if necessary, request such
additional information as it considers appropriate to verify a person's
identity such as a passport, driver¹s licence or copy of a birth certificate
or adoption certificate.
81 ISR 11.brequires the intermediary agency to confirm the applicant¹s age
before proceeding with the application. This is particularly relevant where
the intermediary agency is concerned that the applicant may be under the age
of 18 years. The intermediary agency may request such additional
documentation as it considers appropriate to satisfy itself on this point. A
driver¹s licence, passport or a copy of a birth certificate or an adoption
certificate will constitute sufficient proof of age.
(1* Section 144(3) of the Act.)
82 ISR 11.crequires the agency to confirm that any person acting on behalf
of the applicant has their authority to do so. Where the applicant is unable
to submit an application themselves for example, because of physical or
mental incapacity a person may have been authorised to make an application
on their behalf. Before proceeding with the application, the intermediary
agency must satisfy itself that the person acting on behalf of the applicant
has the authority to do so.
83 ISR 11.dapplies where the applicant is a birth relative of an adopted
person. The intermediary agency is required to take steps to confirm that
the applicant would have been related to the adopted person, but for the
fact of adoption. For example, a natural mother may prove her relationship
to the adopted person by providing a copy of her birth certificate, her
child¹s original birth certificate, and if she was married after the child¹s
birth, her marriage certificate. Before proceeding with an application the
intermediary agency may request any additional documentation it considers
appropriate in order to be satisfied on this point.
CONTACTING THE APPROPRIATE ADOPTION AGENCY: ISR12
84 ISR 12will only apply in those cases where the intermediary agency is not
the appropriate adoption agency. Where the intermediary agency has accepted
an application, it is required by ISR 12.1to take all reasonable steps to
establish whether an adoption agency was involved in the adoption and, if
so, to identify the appropriate adoption agency. The applicant may know the
adoption agency that arranged the adoption, in which case the intermediary
agency need not make any further enquiries other than to establish if the
agency still exists or where the relevant adoption case records are held.
85 ISR 12.2 sets out the steps that the intermediary agency may take in
seeking to identify the appropriate adoption agency, as follows: ISR 12.2.a
permits the intermediary agency to request the information in writing from
the Registrar General. He may be able to identify, from the records he
holds, if an adoption agency was involved in the adoption and the name of
that agency. It needs to be borne in mind that, for past adoptions, the
courts had no obligation to notify the Registrar General of the name of the
adoption agency and the court itself may be the best source for this
information. Where the Registrar General does hold information about the
appropriate adoption agency, he is obliged by ISR 14.1to disclose this
information to the intermediary agency ISR 12.2.bapplies where the Registrar
General certifies that he does not hold information about the appropriate
adoption agency. Where he does not hold this information he is required by
ISR 14.2to provide the intermediary agency with written confirmation of that
fact together with details of the court that made the adoption order. ISR
12.2.bthen permits the intermediary agency to make an application direct to
the court for the information it needs ISR 12.2.cpermits the intermediary
agency to make enquiries of the local authority in the area in which the
adoption took place. The local authority may have placed the child for
adoption or it may have provided a report to the court. It may also hold the
adoption case records in respect of former VAAs that operated within its
boundaries or it may be able to signpost the intermediary agency to the
agency which now holds the relevant case records.
86 ISR 12.3 applies where the intermediary agency has been able to establish
the appropriate adoption agency. In such cases, the intermediary agency is
required to contact the adoption agency to ascertain certain information.
The intermediary agency is first required to establish whether a veto has
been registered by the adopted person under ISR 8. Where the intermediary
agency establishes that a veto has been registered, it is prevented by ISR
8.3from proceeding with the application unless the adopted person has
specified certain circumstances in which the application may proceed and the
application fits those circumstances.
87 Where no veto exists, the intermediary agency is required to ascertain
from the adoption agency whether the subject of the application has ever
registered their views with the agency as to contact with any birth relative
or about being approached by the agency with regard to facilitating contact.
The adopted person may have previously contacted the agency to register
their views about possible contact with birth relatives or about being
approached by an agency on behalf of a birth relative. They may have
previously indicated a wish for contact or no contact or expressed a wish
only to be approached by the agency in certain circumstances, such as where
important health information has come to light. Where a wish for no contact
was registered by an adopted person prior to implementation of the Act, this
will not constitute a formal veto under ISR 8. Where the adopted person has
registered their views with the adoption agency, the intermediary agency is
therefore required by ISR6to have regard to those views in deciding whether
to continue proceeding with the application.
88 The intermediary agency is also required by ISR 12.3.b.ii to ascertain
the adoption agency¹s views as to the appropriateness of the application and
any proposed contact between the applicant and the subject. In forming its
view on the application, the adoption agency must have regard to the matters
set out in ISR 6, including the welfare of the applicant and the subject.
89 The adoption agency will be able to provide a view based on the
information available to it on the adoption case record. There may be
information on the case record to indicate that the application is
inappropriate or even vexatious. The intermediary agency is required by ISR
6.2.bto have regard to the views of the adoption agency in deciding whether
to proceed, or continue proceeding, with the application.
90 Having considered the adoption agency¹s views on the application,
together with the other matters set out at ISR 6, if the intermediary agency
decides to proceed with the application it may then seek the disclosure of
certain information from the adoption agency. ISR 12.3.c permits the
intermediary agency to seek the information it requires for the purposes of:
counselling the applicant, tracing the subject of the application enabling
the subject to make an informed decision as to whether he or she consents to
the disclosure of identifying information to the applicant or possible
contact counselling the subject in the relation to the consent decision.
91 The appropriate adoption agency is required by ISR 12.4to take reasonable
steps to provide the intermediary agency with the information it has
requested for the purposes listed above. The intermediary agency should be
clear as to any conditions or restrictions that the adoption agency may have
imposed in respect of the continued safekeeping or onward disclosure of that
information.
OBTAINING INFORMATION FROM THE REGISTRAR GENERAL: ISR 13
92 In those cases where the intermediary agency has been unable to obtain
sufficient information from the appropriate adoption agency for the purposes
of tracing the subject of the application, ISR 13.1permits the intermediary
agency to seek additional information from the Registrar General. The
intermediary agency may also seek additional information from the Registrar
General in the circumstances set out in ISR 13.2. These are where the
intermediary agency: is unable to identify the appropriate adoption agency
or it ascertains that no adoption agency was involved in the adoption or
contacts the appropriate adoption agency and ascertains that it does not
hold the relevant information.
93 There may be cases where the appropriate adoption agency is unable to
supply the intermediary agency with sufficient information to enable it to
trace the subject of an application in order to seek their consent under ISR
7. In such cases, the intermediary agency may apply in writing to the
Registrar General for information he may hold about that person on the
Adoption Contact Register. Where there is an entry on the Adoption Contact
Register this may contain the information the intermediary agency needs,
such as a last known address, to enable it to trace and establish contact
with the subject of the application.
94 An entry on the Register will also indicate whether the person has
registered a wish for contact or no contact. In the light of any entry on
the Register, the intermediary agency will need to consider whether it
should proceed, but it may do so if it considers it appropriate despite the
registered wish.
95 ISR 13.1.balso permits the intermediary agency to apply to the Registrar
General for the information he may hold that would enable an application to
be made for a certificate from the Adopted Children Register. Where the
adoption records have been lost or where the adoption was a private
arrangement with no adoption agency involved, the only likely source of
identifying information will be the confidential information contained in
the Adopted Children Register.
96 This situation could also arise where the intermediary agency contacts
the appropriate adoption agency and its records are incomplete to the extent
that it is not possible to establish the post-adoption identity of the
adopted person. In such circumstances, the intermediary agency may apply to
the Registrar General for the information which links an entry in the
Register of Births to an entry in the Adopted Children Register. This will
enable the intermediary agency to establish the post-adoption identity of
the adopted person and take steps to trace them.
97 ISR 13.3applies where the intermediary agency is also the appropriate
adoption agency. Where the adoption agency does not hold sufficient
information in its adoption case records to enable it to trace the subject
of an application, it may apply to the Registrar General for the information
under ISR 13.1.aand c. This may arise where the adoption agency¹s records
have been lost or destroyed or where they are incomplete to the extent that
it is not possible to ascertain the post-adoption identity of the adopted
person.
REGISTRAR GENERAL TO COMPLY WITH REQUEST: ISR 14
98 ISR 14.1requires the Registrar General to take reasonable steps to comply
with a written request from an intermediary agency for information under ISR
12 or 13. Where the intermediary agency seeks information in accordance with
ISR 12 or 13 and the Registrar General holds that information, he is obliged
by ISR 14to disclose it. The Registrar General may charge a fee of £10 for
disclosing this information by virtue of ISR 18.3.
99 ISR 14.2applies where an intermediary agency makes a request to the
Registrar General under ISR 12for details of the appropriate adoption
agency. Where the Registrar General does not hold information about the
appropriate adoption agency, he is required by this regulation to notify the
intermediary agency in writing and provide details of the court that made
the adoption order.
COURT TO COMPLY WITH REQUEST: ISR 15
100 ISR 15.1requires the court to disclose to the intermediary agency the
information it may request under ISR 12.2.b.This is information from the
court records regarding the appropriate adoption agency. Where the court
does not hold this information, it is required by ISR 15.2to notify the
intermediary agency in writing, specifying the searches that have been made
of court records. Where the court has reason to consider that the
information being sought by the intermediary agency is held by another
court, it must also provide the intermediary agency with written details of
that court.
AUTHORISED DISCLOSURES: ISR 16
101 ISR 16 stipulates the circumstances in which an intermediary agency may
disclose information (including identifying information As defined by ISR
7.4. ) to other persons or bodies.
ISR 16.a permits the intermediary agency to disclose information to the
Registrar General or the court where it is seeking information from them
under ISR 12or 13. The intermediary agency will need to provide the
Registrar General or the court with sufficient information about each
individual case to enable them to properly discharge their functions under
ISR 14 and 15. This will include information which identifies individuals
including the applicant and the subject of the application.
ISR 16.b permits the intermediary agency to disclose information to the
appropriate adoption agency for the purpose of ascertaining the adoption
agency¹s views on the application or seeking information from the agency
under ISR 12.3.c. The intermediary agency will need to disclose the
information it holds about the application, including details of the
applicant and the subject to enable the appropriate adoption agency to be
able to identify the adoption case records to which the application refers.
ISR 16.c enables the intermediary agency to disclose information, including
identifying information, to the subject of the application to enable them to
make an informed consent decision under ISR 7. The intermediary agency is
required by ISR 7.3to provide the subject with sufficient information to
make an informed decision as to whether to give consent. This information
will include details of the applicant and any other information that will
assist the subject in fully understanding the nature, circumstances and
background of the application.
ISR 16.d enables the intermediary agency to disclose information to any
person or body with whom it has made an arrangement to provide counselling
on its behalf. For counselling and support to be meaningful and beneficial,
the body providing the counselling will probably require access to some or
all of the information that the intermediary agency holds about the
application. This will include any information that the intermediary agency
may have obtained from the appropriate adoption agency under ISR 12.
102 The intermediary agency may attach conditions or restrictions on the
information it passes to the body providing the counselling. For example,
where counselling is being provided to the applicant, the body or person
providing that counselling must take care not to disclose any identifying
information about the subject where their consent to the disclosure has not
been obtained. However, where such consent has been obtained and the
intermediary agency considers that it is appropriate for the information to
be disclosed to the applicant, the person providing the counselling may be
authorised to disclose that information on behalf of the intermediary
agency.
OFFENCE: ISR 17
103 ISR 17 makes it an offence for an intermediary agency to disclose
identifying information in contravention of ISR 7 ( ISR 7 makes provision in
respect of the consent of the subject of the application to the disclosure
of identifying information.) It is intended to ensure that sensitive
identifying information is properly safeguarded where the subject of an
application has no wish to be traced or to have their details passed on.
104 ISR 17applies to ASAs and VAAs who provide intermediary services under
section 98 of the Act. Where an intermediary agency discloses identifying
information in contravention of ISR 7without reasonable excuse, proceedings
may be brought by the registration authority. If found guilty of an offence,
an ASA or VAA will be liable to a fine not exceeding Level 5 on the standard
scale. It may also provide grounds for the registration authority to cancel
the ASA¹s or VAA¹s registration.
105 Where a local authority discloses information in contravention of ISR 7,
this may be dealt with under the default power provided for the appropriate
Minister at section 14 of the Act. This power may be used where a local
authority fails, without reasonable excuse, to comply with any of the duties
imposed by the Act.
FEES: ISR 18
106 ISR 18sets out the circumstances in which an intermediary agency, an
adoption agency, the Registrar General or the court may charge a fee in
connection with services provided under the ISR.
107 ISR 18.1provides an intermediary agency with the discretion to charge
the applicant a fee in connection with processing an application under the
ISR. This will be a fee which the intermediary agency considers to be a
reasonable fee to cover any costs incurred in processing an application. It
may include any costs incurred by the intermediary agency in seeking to
identify the appropriate adoption agency, ascertaining the adoption agency¹s
views under ISR 12, and tracing the subject of the application and seeking
their consent under ISR 7.
108 ISR 18.2permits an intermediary agency to charge a fee in connection
with providing, or securing the provision of, counselling. It enables the
intermediary agency to charge a fee to any person who makes an application
to it under the ISR or any person who is the subject of an application and
is considering whether to give their consent to the disclosure of
identifying information under ISR 7.
109 Where the subject has requested that counselling and support be
provided, it is envisaged that any fees associated with providing the
counselling would normally be met by the applicant as it would not be
appropriate to charge the subject in connection with a service which they
did not initiate. There may be circumstances where the subject would be
prepared to meet those costs such as where the applicant was unable to do so
themselves.
110 The general expectation is that the intermediary agency would normally
provide the counselling itself, although it may choose to make an
arrangement with any of the bodies listed under ISR 10.4to provide
counselling services on its behalf. Where the intermediary agency secures
the provision of counselling by another agency on its behalf, ISR
18.2.apermits it to charge a fee to cover any reasonable costs it incurs in
securing that provision.
111 Where the intermediary agency secures the provision of overseas
counselling for a person, ISR 18.2.bpermits it to charge a fee to that
person to cover any reasonable costs it incurs in securing that provision.
112 ISR 18.3 enables the Registrar General to charge an intermediary agency
a fee of £10 for the provision of information under ISR 14. This is the
information the Registrar General may hold regarding the appropriate
adoption agency, information from the Adoption Contact Register or
information that would enable an application to be made for a certificate
from the Adopted Children Register.
113 ISR 18.4 enables an adoption agency to charge an intermediary agency a
fee in connection with a request under ISR 12. The adoption agency may
charge the intermediary agency a fee which it determines to be a reasonable
fee in connection with providing its views on the appropriateness of an
application or for disclosing information for the purposes set out under ISR
12.3.c.
114 ISR 18.5 enables the court to charge the intermediary agency a fee not
exceeding £20 in respect of the disclosure of information from court records
under ISR 15. This is the information which identifies the appropriate
adoption agency.
115 Where the Registrar General, the appropriate adoption agency or the
court exercises their discretion to charge a fee to the intermediary agency
under ISR 18, the intermediary agency is obliged to pay that fee. Where a
fee is charged, the intermediary agency may seek to recover these costs from
the applicant as part of the charge it may make for processing an
application.
law on search and reunion will be here in England after 30 December 2005
You can also download the guidance to the whole Adoption and Children Act
2002 from
http://www.dfes.gov.uk/adoption/update290705.shtml
Happy reading folks.
Robin
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Adoption and Children Act 2002 - Statutory Guidance.
Chapter 10. Intermediary services and access to information in
pre-commencement adoptions
This part of the guidance explains the legal framework governing the
provision of intermediary services to facilitate contact between adopted
adults and their adult birth relatives in respect of any adoption prior to
30th December 2005. The regulations provide a framework within which
intermediary agencies may, on application from an adopted adult or an adult
birth relative of that person, act as intermediaries and, with the consent
of the subject of an application, facilitate contact between them.
In this chapter:
ACCR means the Adopted Children and Adoption Contact Registers Regulations
2005.
AIR means the Disclosure of Adoption Information (Post-Commencement
Adoptions) Regulations 2005.
ISR means the Adoption Information and Intermediary Services
(Pre-Commencement Adoptions) Regulations 2005.
Specific regulation references appear as ISR 6, for example, which refers to
the Adoption Information and Intermediary Services (Pre-Commencement
Adoptions) Regulation 6.
Paragraphs within a regulation are indicated by a point and the number as in
ISR 6.2, with this being regulation 6, paragraph 2. Acronyms and terms are
set out in the Glossary
INTRODUCTION
1 In relation to a person adopted before commencement of the Act on 30th
December 2005, section 98 of the Act and the ISR2005 prescribe a framework
which enables intermediary agencies (ASAs and adoption agencies) to operate
an intermediary service to provide for contact between adopted adults and
their adult birth relatives.
Birth Relatives
2 Section 98 of the Act and the new regulatory framework provides adopted
adults and their adult birth relatives with a right to apply to an
intermediary agency for an intermediary service. Most birth relatives,
including natural parents, will have little or no information which enables
them to seek to trace a person from whom they have been separated by
adoption and establish if they wish to have contact. This framework enables
an intermediary agency to seek information from a range of sources which it
may use to establish the current identity of an adopted adult, to trace them
and subject to obtaining their informed consent disclose identifying
information about them to the birth relative and facilitate contact. The
intermediary agency will have an important role to play in providing
specialist support and advice to all parties throughout this process.
Adopted Adults
3 An adopted adult may apply to an intermediary agency for the same service
should they wish to establish contact with an adult birth relative. Unlike
birth relatives, adopted people have a long established right to obtain
information about their adoption and family history. Schedule 2 of the Act
preserves the legal right of an adopted person, on reaching the age of 18,
to apply to the Registrar General for the information needed to obtain a
certified copy of the record of their birth. Schedule 2 replaces the
existing access to birth records provision at section 51 of the 1976 Act.
Adopted people may also apply to the appropriate adoption agency (see1*
below) for access to their adoption records. This is likely to include
identifying information about their natural parents and, possibly, others
who were involved in their adoption.
4 An adoption agency continues to have the discretion under the AAR 1983 to
disclose the information it considers appropriate to an adopted person. This
regulation has been saved to enable adoption agencies to continue to provide
adopted adults with the information they need about their family history and
origins. This recognises that some adopted adults have no wish for contact
with former relatives but do wish to receive information about their family
history and early life.
1* As defined by section 65(1) of the Act. The appropriate adoption agency
will be the agency which placed the child for adoption or, if different, the
agency which holds the relevant information in relation to that adoption. It
may also be the local authority to which notice of intention to adopt was
given.
5 Most adopted people apply for information from the adoption agency first
before deciding if they wish to go further and actively pursue contact with
a former relative. Some adopted people find it beneficial to undertake their
own research to establish the identity and whereabouts of the person with
whom they wish to have contact. They may then apply to an intermediary
agency, in order to request that it makes the initial approach to that
person. In other cases, the intermediary agency may undertake the research
and tracing on behalf of the adopted person, obtaining the information it
needs from the adoption agency, the Registrar General, the courts or other
public records. The extent of the work undertaken by the intermediary agency
will therefore depend upon the range of information that the adopted person
already holds.
Who May Provide Services?
6 The regulations stipulate that an intermediary service may be provided by
an ASA or an adoption agency (a local authority or VAA). An ASA will need to
be registered under Part 2 of the Care Standards Act 2000 to provide these
services. An adoption agency may choose to provide an intermediary service,
although there is no statutory requirement for it to do so.
7 The regulations confer functions on:
ASAs
Adoption agencies
The courts
The Registrar General.
8 The regulations set out the detail of how intermediary services will
operate and the circumstances in which the bodies listed above will be able
or required to disclose information to each other to facilitate the
tracing of individuals involved in a person¹s adoption.
9 The regulations require intermediary agencies (as defined in ISR 4)to give
priority to applications in relation to adoptions which took place prior to
12th November 1975. This is in part to manage the demand for services, but
also recognises that those birth relatives who relinquished a child for
adoption many years ago, and are now elderly, will benefit from having early
access to services. In relation to adoptions on or after 12th November 1975,
where the intermediary agency has limited capacity it may only accept
applications where it is satisfied that the circumstances are sufficiently
exceptional, such as where the applicant is terminally ill. Where the
intermediary agency does have spare capacity it may routinely accept
applications in respect of adoptions which took place on or after 12th
November 1975.
PROVISION OF INTERMEDIARY SERVICES: ISR 3
10 ISR 3.1 stipulates that an intermediary service under section 98 of the
Act may be provided by an ASA (see 1*) or an adoption agency. The ASA¹s
conditions of registration under the Care Standards Act 2000 must permit it
to provide services under section 98 of the Act.
11 There is no statutory duty on adoption agencies to provide an
intermediary service. AVAA or a local authority that provides such services
is exempt from having to register as an ASA (see 2*)
. However, those local authorities and VAAs that wish to provide
intermediary services should notify the registration authority and, where
appropriate, request the variation of their conditions of registration.
12 ISR 3.2 stipulates that an intermediary service provided by an ASA or an
adoption agency must be provided in accordance with the requirements set out
in the ISR.
13 ISR 3.3specifies that an intermediary service provided in accordance with
the regulations constitutes an adoption support service as defined by
section 2(6) of the Act.
MEANING OF ³INTERMEDIARY SERVICE² AND ³INTERMEDIARY AGENCY²: ISR 4
14 ISR 4.1defines an intermediary service for the purposes of the
regulations as:
(a) assisting adopted persons aged 18 or over, who were adopted before 30th
December 2005, to obtain information in relation to their adoption; and
(b) facilitating contact between such persons and their relatives. An
intermediary service is provided for the purposes of assisting adopted
adults and their birth relatives in obtaining the information they need for
the purpose of tracing a relative (see 3*) and establishing contact with
them. An adopted person aged 18 or over, who was adopted prior to 30th
December 2005, has the right to request an intermediary service to trace and
facilitate contact with a birth relative. An adult birth relative of an
adopted person has the corresponding right where they wish to trace and
establish contact with an adopted adult.
1* As defined in ISR2.
2* Section 8(2) of the Act.
3* Section 98(7) of the Act: ³relative, in relation to an adopted person,
means any person who (but for his adoption) would be related to him by blood
(including half-blood) or marriage.²
15 The provision of an intermediary service will require the intermediary
agency to undertake a range of functions, including:
undertaking preparatory work with the applicant
obtaining information from a range of sources (i.e. adoption agencies, the
Registrar General and the courts)
using that information to trace and contact individuals
acting as intermediary between the applicant and the subject and
facilitating contact between them, and providing counselling, support and
advice.
16 The range of services provided will vary depending upon who makes the
application to the intermediary agency and the information they may already
hold about the person with whom they are seeking contact.
17 Where the applicant is a birth relative of an adopted person it is likely
that they will hold no identifying information (or very scant information)
about the adopted person. The intermediary agency will need to undertake
preparatory work with the applicant on receipt of the application and work
closely with them as it takes forward work to obtain the information it
needs to trace the subject of the application. This will require the
intermediary agency to:
engage in research work
gather information from a variety of sources
contact individuals
provide ongoing support and advice to the applicant, and where appropriate,
the subject of the application.
18 Where the applicant is an adopted adult the manner in which the
intermediary agency processes the application will depend upon the
information already at the applicant¹s disposal. Most adopted adults will
already hold some identifying information about their adoption, including
the information which identifies their natural parents or other birth
relatives. They are likely to have already obtained their original birth
certificate and may have been provided with a range of additional
information, including identifying information, by the adoption agency that
arranged their adoption.
19 Many adopted people have already sought some information about their
adoption before deciding that they wish to pursue contact with a former
relative. Some adopted people will have undertaken their own research and
established the current identity and whereabouts of the person with whom
they are seeking to establish contact. In such cases, they may apply to an
intermediary agency to make the initial approach to that person. Making this
approach is an important part of the intermediary agency¹s role as evidence
shows that without professional support, direct approaches have a lesser
prospect of a successful outcome.
20 It is important, therefore, that on receipt of an application (from an
adopted adult or a birth relative), the intermediary agency establishes, as
far as possible, what information the applicant already holds, what steps
they may already have taken to trace the person(s) with whom they are
seeking contact and their expectations in relation to possible contact. This
will be an important part of the preparatory work with any applicant.
21 ISR 4.2distinguishes between the provision of an intermediary service and
an adoption agency¹s function of disclosing information to adopted adults
about their adoption, their family history and early life. Initially, most
adopted people seek information about their adoption and reflect on this
before deciding if they wish to go further and initiate a search for a birth
relative.
22 Where an adopted person is only seeking information about their adoption,
they should continue to apply to the adoption agency which holds the
relevant case records about their adoption. The adoption agency continues to
have the discretion under AAR 15, 1983to disclose the information it
considers appropriate to the adopted person. The adoption agency¹s function
of providing access to the records it holds does not in itself constitute an
intermediary service for the purposes of section 98 of the Act and the
regulations.
23 Under Schedule 2 of the Act, an adopted person also retains the right, on
reaching the age of 18, to apply to the Registrar General for the
information needed to obtain a copy of their original birth certificate. The
adopted person may use this information as the basis for undertaking their
own search for a birth relative using the public records available to them.
They may then apply for an intermediary service to make the initial approach
to the birth relative with whom they are seeking contact on their behalf.
24 ISR 4.3defines the term" intermediary agency². This term applies in the
ISR to an ASA or an adoption agency that provides an intermediary service in
accordance with the regulations.
APPLICATIONS THAT MAY BE ACCEPTED: ISR 5
25 ISR 5.1specifies the applications that may be accepted by an intermediary
agency 1*. It stipulates that for the purposes of these regulations,
applications may be received: from persons adopted before 30th December 2005
for assistance in contacting a birth relative, or from a relative of a
person adopted before 30th December 2005 for assistance in contacting the
adopted person.
26 In respect of adoptions on or after 30th December 2005, the framework at
sections 56-65ofthe Act and the AIR 2005will apply (see Chapter 11 of this
guidance). 27 ISR 5.2requires an intermediary agency to give priority to
those applications it receives in respect of adoptions which took place
prior to 12th November 1975. It is intended to help intermediary agencies,
the Registrar General and the courts manage demand for these services and to
provide priority access to services for those who have the greatest need.
28 Where the intermediary agency has limited capacity to manage
applications, those applications in respect of adoptions which took place on
or after 12th November 1975 may only be accepted where the intermediary
agency is satisfied that the circumstances are sufficiently exceptional as
to warrant doing so. Cases of genuine urgency will almost always be those
where the applicant is very elderly or terminally ill.
29 Where the intermediary agency does have sufficient capacity to accept
applications, it may routinely accept applications in respect of adoptions
on or after 12th November 1975 if it considers it appropriate to do so.
30 ISR 5.3stipulates that both the applicant and the subject of the
application must have attained the age of 18. Before proceeding with an
application, the intermediary agency should seek to establish, as far as
reasonably practicable, that both the applicant and the subject of the
application are aged 18 or over. Where the intermediary agency accepts an
application, for example from an adopted person seeking contact with a birth
sibling, and the agency subsequently discovers that the subject of the
application is under the age of 18, it must not proceed further with the
application.
1* As defined by ISR 4.
NO OBLIGATION TO PROCEED IF NOT APPROPRIATE: ISR 6
31 ISR 6.1provides the intermediary agency with a general discretion not to
proceed, or continue proceeding, with an application unless it considers it
appropriate to do so. In reaching this decision, ISR 6.2requires the
intermediary agency to have regard to certain specified issues.
32 ISR 6.2.arequires the intermediary agency to have regard to the welfare
of the applicant, the subject of the application and any other person who
may be identified or otherwise affected by the application in deciding
whether to proceed, or continue proceeding, with an application. It must
also have regard to all the other circumstances of the case. Each case will
be different and some will involve additional factors or particularly
complex issues.
33 Where the intermediary service is being provided by the appropriate
adoption agency, it will first need to consider the information available to
it on the case records it holds. If necessary, it may also seek additional
information held by the Registrar General on the Adoption Contact Register
to help inform the exercise of its discretion as to whether to proceed, or
continue proceeding, with the application.
34 For example, where the subject of an application had registered a wish
for no contact with the applicant on the Adoption Contact Register, the
intermediary agency may decide on the basis of that entry not to proceed
further with the application. There may also be information on the relevant
adoption case record to indicate that proceeding with the application could
place the applicant (or the subject) at risk of harm. This may be a factor
where the adopted person was placed for adoption as a result of serious
physical or sexual abuse within the birth family.
35 Where the intermediary agency is not the appropriate adoption agency, it
is first required by ISR 12to establish the appropriate adoption agency, if
possible. It is then required to ascertain the adoption agency¹s views on
the application and any proposed contact between the applicant and the
subject of the application.
36 The adoption agency may express the view, based on the information it
holds, that proceeding with the application could be harmful to the welfare
of the applicant or the subject of the application. The intermediary agency
is required by ISR 6.2.bto have regard to those views. The intermediary
agency may also seek information held by the Registrar General on the
Adoption Contact Register to help inform its decision as to whether to
proceed with the application.
37 In circumstances where: the intermediary agency is unable to establish
the identity of the appropriate adoption agency the appropriate adoption
agency is identified but its records have been lost or destroyed, or the
intermediary agency establishes that no adoption agency was involved in the
adoption, the intermediary agency will have scant information to inform its
decision as to whether to proceed. Thus, it may be useful to seek
information that the Registrar General may hold on the Adoption Contact
Register to inform any decision as to whether to proceed with the
application.
38 In addition to the welfare of the applicant and the subject of the
application, the intermediary agency is also required by ISR 6.2.a.iii to
have regard to the welfare of ³any other person who may be identified or
otherwise affected by the application². This could apply where the subject
was a young adopted adult with younger siblings. The agency will therefore
need to have regard to the welfare of the adoptive parents as well as any
siblings within the adoptive family. Although the intermediary agency is not
routinely required to seek the view of the adoptive parents, it will need to
exercise its discretion as to whether it is appropriate to do so having
regard to the particular circumstances of the case.
39 The views of the adoptive parents will not on their own be decisive but
one of a range of factors to which the agency must have regard in deciding
whether to proceed, or continue proceeding, with the application. However,
where a younger sibling within the adoptive family is under the age of 18,
the intermediary agency is required by ISR 6.3to have particular regard to
his or her welfare. This will be an important factor in the agency¹s
consideration as to whether it is appropriate to proceed, or continue
proceeding, with the application.
40 ISR 6.2.b requires the intermediary agency to have regard to any views of
the appropriate adoption agency in respect of the application and any
proposed contact between the applicant and the subject. The intermediary
agency is required to ascertain these views under ISR 12.The adoption agency
will be best placed to provide advice to the intermediary agency based on
the information it holds.
41 ISR 6.2.c requires the intermediary agency to have regard to any
information it obtains from the Registrar General on the Adoption Contact
Register under ISR 13in deciding whether to proceed, or continue proceeding,
with an application. Where the subject of the application had registered a
wish for ³no contact² on the Register this does not in itself preclude the
intermediary agency from proceeding, or continuing to proceed, with the
application. The intermediary agency may still proceed with the application
if it considers it appropriate to do so. Each case will be different and
must be judged on its merits. That is why the intermediary agency is also
required by ISR 6.2to consider ³all the circumstances of the case².
42 ISR 6.3 requires the intermediary agency to have particular regard to the
welfare of any person mentioned in ISR 6.2.a.iiiwho is under the age of 18.
This regulation will apply where, for example, the subject of an application
is a 19 year old adopted person with a sibling under the age of 18. Although
it will ultimately be for the adopted adult to decide if they wish to have
contact with the applicant, the intermediary agency must also consider the
welfare of the younger sibling in deciding whether to continue proceeding
with the application. The agency may wish to seek the views of the subject¹s
adoptive parents on this issue in coming to its decision. Where the agency
decides to consult them it should make clear that this is an opportunity for
them to make their views known but that they have no right to veto the
application. Where the intermediary agency forms the view that proceeding
with the application would not be in the interests of the younger sibling¹s
welfare, it may decide not to proceed with the application or to proceed
with the application at a later date. 43 ISR 6.4requires the intermediary
agency not to proceed, or continue proceeding, with an application where it
ascertains that the subject of the application is under the age of 18.
CONSENT OF SUBJECT TO DISCLOSURE: ISR 7
44 ISR 7.1prohibits an intermediary agency from disclosing identifying
information to the applicant about the subject of the application without
having first obtained the subject¹s consent. For the purposes of this
regulation, ³identifying information² is defined at ISR 7.4below. This is an
important safeguard which recognises that some adopted persons and birth
relatives have no wish to be traced or to have their details passed on.
45 The requirement to obtain consent is intended to safeguard against the
inappropriate disclosure of sensitive information about the subject which
the intermediary agency has obtained on the applicant¹s behalf and which
would not otherwise be available to the applicant. This will generally be
the identifying information which the intermediary agency obtains from the
adoption agency¹s case records or other information which is not in the
public domain. Therefore, this regulation will not apply to any identifying
information which the applicant already holds, for example, where an adopted
adult has undertaken their own research and has been able to establish the
identity and/or whereabouts of the subject. The regulation will also not
apply to identifying information which could reasonably be obtained by the
applicant from existing public records such as birth, marriage or death
certificates held by the Registrar General or information from the electoral
register.
46 ISR 7.2applies where intermediary agency discovers that the subject of
the application has died or where it determines that the subject is
incapable of giving informed consent. (1*)
47 Where the intermediary agency ascertains that the subject of the
application has died, this regulation provides the discretion to disclose
identifying information about the subject, having first had regard to the
matters specified at ISR 6.2. The intermediary agency must therefore have
regard to the welfare of any other person who may be identified by
disclosing the identifying information about the subject or any other person
who may be affected by the application.
48 Each case will be different but the intermediary agency should, as a
minimum, take steps to seek the views of the deceased person¹s next of kin
before deciding whether it is appropriate to disclose the identifying
information. The agency may also consider it appropriate to seek the views
of persons in addition to the next of kin, such as other family members of
the subject, depending on the circumstances of the case. Having sought the
views of the next of kin (and possibly others) the agency must have regard
to their welfare in deciding whether to disclose the identifying
information. It may then disclose the information to the applicant if it
considers it appropriate to do so.
49 In circumstances where the intermediary agency determines that the
subject is incapable of giving informed consent because of a learning
difficulty or other mental impairment, it is again required to have regard
to the matters specified in ISR 6.2. The agency may again need to seek the
views of others before deciding whether it is appropriate to disclose
identifying information about the subject to the applicant.
50 The intermediary agency will need to establish if the subject has
appointed somebody to act on their behalf, for example, the Court of
Protection, and would have to consult that person or body. Depending on the
circumstances of each individual case, the agency may also wish to seek the
views of others such as the subject¹s spouse or registered civil partner (if
applicable) or other family members. Subject to any views obtained by the
intermediary agency and having regard to the welfare of others identified or
affected by the application, the agency may then disclose identifying
information to the applicant if it considers it appropriate to do so.
1* Informed consent means that the subject fully understands the nature,
circumstances and background of the agency¹s request and the implications of
their decision to give or withhold consent.
51 ISR 7.3requires the intermediary agency to take steps to ensure that any
person whose consent is required has sufficient information to be able to
make an informed decision as to whether to give their consent. This
regulation requires the intermediary agency to provide the subject with
information about the application and the background of the case. The
intermediary agency may also provide the subject with information about the
applicant, their circumstances and the reasons for their application. This
may include information which identifies the applicant, as the subject will
wish to know who is making contact, their reasons for doing so and their
expectations.
52 The process of obtaining consent will need to be handled carefully and
compassionately and the intermediary agency should advise the subject about
such counselling services or other specialist support and advice as may be
available. Finally, the intermediary agency must be satisfied that the
subject fully understands the nature and circumstances of the request for
consent and the implications of any consent decision he or she might make.
53 ISR 7.4defines ³identifying information² for the purposes of this
regulation and for ISR 9and 12. It is defined as information which, whether
taken on its own or together with other information possessed by the
applicant, enables the subject to be identified or traced.
54 Where the applicant is a birth relative it will mainly be the former
(i.e. the information which reveals the current identity of the adopted
person). Where the applicant is an adopted adult, they are likely to already
possess a range of identifying information about the subject of the
application. They will have already obtained a copy of their original birth
certificate from the Registrar General and may have obtained additional
information from other records in the public domain. They may also already
have had access to some information from adoption agency records.
55 The adopted person may have undertaken their own research which enabled
them to establish the current identity and/or the whereabouts of the person
with whom they are seeking contact. They may subsequently apply to an
intermediary agency to make the initial approach to that person. The
requirement to obtain the subject¹s consent will not therefore apply to any
identifying information already held by the applicant. However, where the
intermediary agency obtains any identifying information about the subject
over and above that which is already held by the applicant, and which is not
otherwise publicly available to the applicant, it is required to obtain the
consent of the subject to the disclosure of that information. Where consent
is not given, the intermediary agency will need to make it clear to the
subject that the applicant already holds sufficient information to enable
them to make a direct approach and may choose to do so even if the subject
has indicated a wish for no contact with them.
VETO BY AN ADOPTED PERSON: ISR 8
56 Where an adopted adult has no wish for contact with birth relatives, the
main repository to formally register such a wish will continue to be the
Adoption Contact Register maintained by the Registrar General. Section 80 of
the Act enhances the role of the Register so that an adopted adult or a
birth relative may now formally register a wish for no contact or for
contact. An adopted person may also specify those birth relatives with whom
they do or do not wish to have contact. ISR 6.2requires an intermediary
agency to have regard to any information which may be held on the Adoption
Contact Register in informing its discretion as to whether to proceed, or
continue proceeding, with an application.
57 There will be some cases where an adopted adult has no wish for contact
or to be approached by an intermediary agency on behalf of a birth relative.
There will also be cases where the adopted person only wishes to be
approached on behalf of a specified birth relative or in specified
circumstances. In such cases, ISR 8.1enables the adopted person to register
a formal veto with the appropriate adoption agency.
58 ISR 8.1.bprovides that an adopted adult may formally register an absolute
or a qualified veto. An absolute veto would prevent an intermediary agency
from making an approach in any circumstances A qualified veto would enable
the intermediary agency to make an approach on behalf of a birth relative
specified by the adopted person or in circumstances specified by the adopted
person (for example, where there was information about a hereditary medical
condition).
59 This provision is intended to ensure that where an adopted person has no
wish to be approached by an intermediary agency, that wish for privacy is
respected.
60 Where an adopted person wishes to register a formal veto with the
adoption agency under ISR 8,the adoption agency must first take steps to
verify that the person seeking to register the veto is the adopted person.
Any veto must be an ³informed veto². Therefore, before any veto may be
registered the agency must also be satisfied that the adopted person fully
understands the implications of so doing, particularly where he or she
wishes to register an absolute veto. The agency should explore with them
their reasons for wishing to register a veto and should explain clearly the
effect of doing so. The agency must also make clear to the adopted person
their right to amend or withdraw the veto at any time and the steps to be
taken should they wish to do so. The agency should consider the adopted
person¹s need for counselling in respect of any decision to register, amend
or retract any veto, whether an absolute or a qualified veto.
61 A formal veto is not a life-long veto but will remain in place until such
a time as it is amended or retracted by the adopted person. An absolute veto
under ISR 8.1.b.iwill prevent an intermediary agency from making an approach
on behalf of a birth relative under the ISR. So, for example, where the
birth relative wished to establish contact with the adopted adult because of
a possible hereditary medical condition, the intermediary agency would be
precluded from proceeding with an application under these regulations by
virtue of ISR 8.3. In such cases, the appropriate adoption agency could pass
on the medical information supplied by the birth relative to the adopted
person where it considers it appropriate to do so. The agency must be fully
satisfied that the circumstances are sufficiently exceptional to warrant
contacting the adopted person to pass on this information. In exceptional
cases a person may also make an application to the court under section 79(4)
of the Act for the disclosure of the identifying information held by the
Registrar General on the Adopted Children Register.
62 There may be a small number of cases where a birth relative has been able
to establish independently the identity and/or the whereabouts of an adopted
adult without any assistance from an intermediary agency. They may then
apply to an intermediary agency to make an initial approach to the adopted
person on their behalf. Where the intermediary agency ascertains that the
adopted person has registered a veto it will not be able to make this
approach on behalf of the birth relative (unless the circumstances of the
application matched those specified by the adopted person in any qualified
veto).
63 However, given that the birth relative already holds the information that
would enable them to make a direct approach, the adoption agency that holds
the veto may contact the adopted person to notify them of this fact and
advise them that the veto would need to be amended or withdrawn to enable
the intermediary agency to take forward the application and provide the
necessary expert counselling and support. It should be made clear to the
adopted person that if they do not wish to amend or withdraw the veto, then
the birth relative may choose to make a direct approach.
64 ISR 8.1.b.iienables an adopted person to register a qualified veto. This
enables them to specify the person(s) on behalf of whom an approach from an
intermediary agency would be welcome. For example, an adopted person may not
wish to be approached on behalf of a natural parent but would welcome an
approach on behalf of a birth sibling. 65 This regulation also enables the
adopted person to specify the circumstances in which an approach from an
intermediary agency would be welcome. They could specify, for example, that
an approach would only be welcomed where the intermediary agency was acting
on behalf of a birth relative who had important medical information they
wished to impart or in circumstances involving a bequest from a deceased
birth relative.
66 ISR 8.2requires the appropriate adoption agency to keep a written record
of any veto on the adopted person¹s case record. Where an intermediary
agency contacts the adoption agency under ISR 12to ascertain its views on an
application, it is also required by this regulation to notify the
intermediary agency of the terms of any veto which may have been recorded on
the adopted person¹s case record.
67 ISR 8.3stipulates that an intermediary agency may not proceed with an
application from a birth relative where it is aware that an absolute veto
has been registered by an adopted person under this regulation. Where a
qualified veto has been registered with the appropriate adoption agency, the
intermediary agency may only proceed where the application falls within the
circumstances specified by the adopted person.
PROVISION OF BACKGROUND INFORMATION WHERE CONSENT REFUSED: ISR 9
68 ISR 9will apply where the intermediary agency has been unable to obtain,
for whatever reason, the consent of the subject to the disclosure of
identifying information to the applicant. It will also apply where the
adopted person has registered a veto with the appropriate adoption agency
under ISR 8.
69 This regulation provides the intermediary agency with the discretion to
disclose background information to the applicant if it considers it
appropriate to do so. This could be a wide range of information, provided it
does not fall within the definition of identifying information at ISR 7.4.
It allows the intermediary agency to pass on details of the subject¹s
domestic or family circumstances, their general health and well-being or
other information which may be of value to the applicant. COUNSELLING: ISR
10
70 ISR 10recognises the important role that counselling, support and advice
can play both for the applicant and the subject of the application. It may
help the applicant prepare for the process of tracing a birth relative from
whom they may have been separated for many years. It will also help them to
prepare for positive and negative outcomes, such as feelings of loss or
rejection that may arise where the subject has no wish for contact or has
died. The subject themselves may also need careful support in reaching their
decision as to whether to give their consent to the disclosure of
identifying information.
71 ISR 10.1requires the intermediary agency to provide written information
about the availability of counselling to any person who: (a) makes an
application to the agency; (b) who is the subject of an application and is
considering whether to give their consent to the disclosure of identifying
information.
72 ISR 10.2requires the agency to provide written information about the
persons or bodies offering the counselling and any fees that may apply. It
is anticipated that in most cases, the intermediary agency will provide the
counselling itself, although it may make an arrangement with one of the
bodies listed at ISR10.4.a-dto provide the counselling or specialist support
on its behalf.
73 There is no statutory requirement for the applicant or the subject to
undergo counselling or to receive any other form of support and advice. They
may already have received counselling when applying to the Registrar General
for access to birth records or to the adoption agency for the disclosure of
information about their adoption. However, the valuable role that
counselling and support can play is well established and the intermediary
agency should be proactive in encouraging the provision of counselling to
both the applicant and the subject of the application. Where the applicant
or the subject of the application agree to the provision of counselling, or
request that counselling be provided, ISR 10.3requires the agency to secure
the provision of those services for that person.
74 Where the applicant or the subject has complex support needs which the
intermediary agency considered it could not meet, they may be referred to
their local authority for an assessment of their need for adoption support
services by virtue of the ASR.
75 ISR 10.4gives the intermediary agency the discretion to provide the
counselling itself or to secure the provision of counselling from one of the
following bodies if the person is: in England or Wales, another adoption
agency or an ASA ; in Scotland, a Scottish adoption agency ; in Northern
Ireland, an adoption society which is registered under Article 4 of the
Adoption (Northern Ireland) Order 1987 or any Board ; outside the United
Kingdom, any person or body outside the United Kingdom who appears to the
agency to correspond in its functions to a body mentioned above.
76 Where the intermediary agency makes an arrangement with an ASA under ISR
10.4.a above, it must be satisfied that the ASA¹s conditions of registration
allow it to provide counselling services. If necessary, the intermediary
agency may verify the ASA¹s conditions of registration with the registration
authority. The intermediary agency should also be satisfied that the agency
providing the counselling on its behalf possesses the necessary skills and
experience to do so, especially in particularly complex cases. 77 ISR
10.4.benables the agency to make an arrangement for the provision of
counselling with a Scottish adoption agency. This could be a local authority
or a voluntary organisation registered to provide that service (1*)
78 ISR 10.4.cenables the same arrangement to be made with a registered
adoption society or Board in Northern Ireland. ISR 10.5defines a ³Board² for
this purpose as being a Health and Social Services Board or, where the
functions of a board are exercisable by a Health and Social Services Trust,
that Trust.
79 Where the person who has requested counselling is outside the United
Kingdom or British Islands, ISR 10.4.denables the adoption agency to make an
arrangement with an overseas counselling provider. This is subject to the
proviso that the agency is able to satisfy itself, as far as reasonably
practicable, that the overseas provider possesses the requisite
qualifications, skills and experience to provide the counselling service.
The adoption agency should be satisfied, as far as possible, that the
overseas provider corresponds in its functions to a person or body which may
provide adoption counselling within the United Kingdom.
PROCEDURE ON RECEIPT OF APPLICATION: ISR 11
80 ISR 11stipulates the steps that must be taken by the intermediary agency
on receipt of an application under ISR 5. ISR 11.arequires the intermediary
agency to: take reasonable steps to verify the identity of the applicant or
of any person acting on the applicant¹s behalf if necessary, request such
additional information as it considers appropriate to verify a person's
identity such as a passport, driver¹s licence or copy of a birth certificate
or adoption certificate.
81 ISR 11.brequires the intermediary agency to confirm the applicant¹s age
before proceeding with the application. This is particularly relevant where
the intermediary agency is concerned that the applicant may be under the age
of 18 years. The intermediary agency may request such additional
documentation as it considers appropriate to satisfy itself on this point. A
driver¹s licence, passport or a copy of a birth certificate or an adoption
certificate will constitute sufficient proof of age.
(1* Section 144(3) of the Act.)
82 ISR 11.crequires the agency to confirm that any person acting on behalf
of the applicant has their authority to do so. Where the applicant is unable
to submit an application themselves for example, because of physical or
mental incapacity a person may have been authorised to make an application
on their behalf. Before proceeding with the application, the intermediary
agency must satisfy itself that the person acting on behalf of the applicant
has the authority to do so.
83 ISR 11.dapplies where the applicant is a birth relative of an adopted
person. The intermediary agency is required to take steps to confirm that
the applicant would have been related to the adopted person, but for the
fact of adoption. For example, a natural mother may prove her relationship
to the adopted person by providing a copy of her birth certificate, her
child¹s original birth certificate, and if she was married after the child¹s
birth, her marriage certificate. Before proceeding with an application the
intermediary agency may request any additional documentation it considers
appropriate in order to be satisfied on this point.
CONTACTING THE APPROPRIATE ADOPTION AGENCY: ISR12
84 ISR 12will only apply in those cases where the intermediary agency is not
the appropriate adoption agency. Where the intermediary agency has accepted
an application, it is required by ISR 12.1to take all reasonable steps to
establish whether an adoption agency was involved in the adoption and, if
so, to identify the appropriate adoption agency. The applicant may know the
adoption agency that arranged the adoption, in which case the intermediary
agency need not make any further enquiries other than to establish if the
agency still exists or where the relevant adoption case records are held.
85 ISR 12.2 sets out the steps that the intermediary agency may take in
seeking to identify the appropriate adoption agency, as follows: ISR 12.2.a
permits the intermediary agency to request the information in writing from
the Registrar General. He may be able to identify, from the records he
holds, if an adoption agency was involved in the adoption and the name of
that agency. It needs to be borne in mind that, for past adoptions, the
courts had no obligation to notify the Registrar General of the name of the
adoption agency and the court itself may be the best source for this
information. Where the Registrar General does hold information about the
appropriate adoption agency, he is obliged by ISR 14.1to disclose this
information to the intermediary agency ISR 12.2.bapplies where the Registrar
General certifies that he does not hold information about the appropriate
adoption agency. Where he does not hold this information he is required by
ISR 14.2to provide the intermediary agency with written confirmation of that
fact together with details of the court that made the adoption order. ISR
12.2.bthen permits the intermediary agency to make an application direct to
the court for the information it needs ISR 12.2.cpermits the intermediary
agency to make enquiries of the local authority in the area in which the
adoption took place. The local authority may have placed the child for
adoption or it may have provided a report to the court. It may also hold the
adoption case records in respect of former VAAs that operated within its
boundaries or it may be able to signpost the intermediary agency to the
agency which now holds the relevant case records.
86 ISR 12.3 applies where the intermediary agency has been able to establish
the appropriate adoption agency. In such cases, the intermediary agency is
required to contact the adoption agency to ascertain certain information.
The intermediary agency is first required to establish whether a veto has
been registered by the adopted person under ISR 8. Where the intermediary
agency establishes that a veto has been registered, it is prevented by ISR
8.3from proceeding with the application unless the adopted person has
specified certain circumstances in which the application may proceed and the
application fits those circumstances.
87 Where no veto exists, the intermediary agency is required to ascertain
from the adoption agency whether the subject of the application has ever
registered their views with the agency as to contact with any birth relative
or about being approached by the agency with regard to facilitating contact.
The adopted person may have previously contacted the agency to register
their views about possible contact with birth relatives or about being
approached by an agency on behalf of a birth relative. They may have
previously indicated a wish for contact or no contact or expressed a wish
only to be approached by the agency in certain circumstances, such as where
important health information has come to light. Where a wish for no contact
was registered by an adopted person prior to implementation of the Act, this
will not constitute a formal veto under ISR 8. Where the adopted person has
registered their views with the adoption agency, the intermediary agency is
therefore required by ISR6to have regard to those views in deciding whether
to continue proceeding with the application.
88 The intermediary agency is also required by ISR 12.3.b.ii to ascertain
the adoption agency¹s views as to the appropriateness of the application and
any proposed contact between the applicant and the subject. In forming its
view on the application, the adoption agency must have regard to the matters
set out in ISR 6, including the welfare of the applicant and the subject.
89 The adoption agency will be able to provide a view based on the
information available to it on the adoption case record. There may be
information on the case record to indicate that the application is
inappropriate or even vexatious. The intermediary agency is required by ISR
6.2.bto have regard to the views of the adoption agency in deciding whether
to proceed, or continue proceeding, with the application.
90 Having considered the adoption agency¹s views on the application,
together with the other matters set out at ISR 6, if the intermediary agency
decides to proceed with the application it may then seek the disclosure of
certain information from the adoption agency. ISR 12.3.c permits the
intermediary agency to seek the information it requires for the purposes of:
counselling the applicant, tracing the subject of the application enabling
the subject to make an informed decision as to whether he or she consents to
the disclosure of identifying information to the applicant or possible
contact counselling the subject in the relation to the consent decision.
91 The appropriate adoption agency is required by ISR 12.4to take reasonable
steps to provide the intermediary agency with the information it has
requested for the purposes listed above. The intermediary agency should be
clear as to any conditions or restrictions that the adoption agency may have
imposed in respect of the continued safekeeping or onward disclosure of that
information.
OBTAINING INFORMATION FROM THE REGISTRAR GENERAL: ISR 13
92 In those cases where the intermediary agency has been unable to obtain
sufficient information from the appropriate adoption agency for the purposes
of tracing the subject of the application, ISR 13.1permits the intermediary
agency to seek additional information from the Registrar General. The
intermediary agency may also seek additional information from the Registrar
General in the circumstances set out in ISR 13.2. These are where the
intermediary agency: is unable to identify the appropriate adoption agency
or it ascertains that no adoption agency was involved in the adoption or
contacts the appropriate adoption agency and ascertains that it does not
hold the relevant information.
93 There may be cases where the appropriate adoption agency is unable to
supply the intermediary agency with sufficient information to enable it to
trace the subject of an application in order to seek their consent under ISR
7. In such cases, the intermediary agency may apply in writing to the
Registrar General for information he may hold about that person on the
Adoption Contact Register. Where there is an entry on the Adoption Contact
Register this may contain the information the intermediary agency needs,
such as a last known address, to enable it to trace and establish contact
with the subject of the application.
94 An entry on the Register will also indicate whether the person has
registered a wish for contact or no contact. In the light of any entry on
the Register, the intermediary agency will need to consider whether it
should proceed, but it may do so if it considers it appropriate despite the
registered wish.
95 ISR 13.1.balso permits the intermediary agency to apply to the Registrar
General for the information he may hold that would enable an application to
be made for a certificate from the Adopted Children Register. Where the
adoption records have been lost or where the adoption was a private
arrangement with no adoption agency involved, the only likely source of
identifying information will be the confidential information contained in
the Adopted Children Register.
96 This situation could also arise where the intermediary agency contacts
the appropriate adoption agency and its records are incomplete to the extent
that it is not possible to establish the post-adoption identity of the
adopted person. In such circumstances, the intermediary agency may apply to
the Registrar General for the information which links an entry in the
Register of Births to an entry in the Adopted Children Register. This will
enable the intermediary agency to establish the post-adoption identity of
the adopted person and take steps to trace them.
97 ISR 13.3applies where the intermediary agency is also the appropriate
adoption agency. Where the adoption agency does not hold sufficient
information in its adoption case records to enable it to trace the subject
of an application, it may apply to the Registrar General for the information
under ISR 13.1.aand c. This may arise where the adoption agency¹s records
have been lost or destroyed or where they are incomplete to the extent that
it is not possible to ascertain the post-adoption identity of the adopted
person.
REGISTRAR GENERAL TO COMPLY WITH REQUEST: ISR 14
98 ISR 14.1requires the Registrar General to take reasonable steps to comply
with a written request from an intermediary agency for information under ISR
12 or 13. Where the intermediary agency seeks information in accordance with
ISR 12 or 13 and the Registrar General holds that information, he is obliged
by ISR 14to disclose it. The Registrar General may charge a fee of £10 for
disclosing this information by virtue of ISR 18.3.
99 ISR 14.2applies where an intermediary agency makes a request to the
Registrar General under ISR 12for details of the appropriate adoption
agency. Where the Registrar General does not hold information about the
appropriate adoption agency, he is required by this regulation to notify the
intermediary agency in writing and provide details of the court that made
the adoption order.
COURT TO COMPLY WITH REQUEST: ISR 15
100 ISR 15.1requires the court to disclose to the intermediary agency the
information it may request under ISR 12.2.b.This is information from the
court records regarding the appropriate adoption agency. Where the court
does not hold this information, it is required by ISR 15.2to notify the
intermediary agency in writing, specifying the searches that have been made
of court records. Where the court has reason to consider that the
information being sought by the intermediary agency is held by another
court, it must also provide the intermediary agency with written details of
that court.
AUTHORISED DISCLOSURES: ISR 16
101 ISR 16 stipulates the circumstances in which an intermediary agency may
disclose information (including identifying information As defined by ISR
7.4. ) to other persons or bodies.
ISR 16.a permits the intermediary agency to disclose information to the
Registrar General or the court where it is seeking information from them
under ISR 12or 13. The intermediary agency will need to provide the
Registrar General or the court with sufficient information about each
individual case to enable them to properly discharge their functions under
ISR 14 and 15. This will include information which identifies individuals
including the applicant and the subject of the application.
ISR 16.b permits the intermediary agency to disclose information to the
appropriate adoption agency for the purpose of ascertaining the adoption
agency¹s views on the application or seeking information from the agency
under ISR 12.3.c. The intermediary agency will need to disclose the
information it holds about the application, including details of the
applicant and the subject to enable the appropriate adoption agency to be
able to identify the adoption case records to which the application refers.
ISR 16.c enables the intermediary agency to disclose information, including
identifying information, to the subject of the application to enable them to
make an informed consent decision under ISR 7. The intermediary agency is
required by ISR 7.3to provide the subject with sufficient information to
make an informed decision as to whether to give consent. This information
will include details of the applicant and any other information that will
assist the subject in fully understanding the nature, circumstances and
background of the application.
ISR 16.d enables the intermediary agency to disclose information to any
person or body with whom it has made an arrangement to provide counselling
on its behalf. For counselling and support to be meaningful and beneficial,
the body providing the counselling will probably require access to some or
all of the information that the intermediary agency holds about the
application. This will include any information that the intermediary agency
may have obtained from the appropriate adoption agency under ISR 12.
102 The intermediary agency may attach conditions or restrictions on the
information it passes to the body providing the counselling. For example,
where counselling is being provided to the applicant, the body or person
providing that counselling must take care not to disclose any identifying
information about the subject where their consent to the disclosure has not
been obtained. However, where such consent has been obtained and the
intermediary agency considers that it is appropriate for the information to
be disclosed to the applicant, the person providing the counselling may be
authorised to disclose that information on behalf of the intermediary
agency.
OFFENCE: ISR 17
103 ISR 17 makes it an offence for an intermediary agency to disclose
identifying information in contravention of ISR 7 ( ISR 7 makes provision in
respect of the consent of the subject of the application to the disclosure
of identifying information.) It is intended to ensure that sensitive
identifying information is properly safeguarded where the subject of an
application has no wish to be traced or to have their details passed on.
104 ISR 17applies to ASAs and VAAs who provide intermediary services under
section 98 of the Act. Where an intermediary agency discloses identifying
information in contravention of ISR 7without reasonable excuse, proceedings
may be brought by the registration authority. If found guilty of an offence,
an ASA or VAA will be liable to a fine not exceeding Level 5 on the standard
scale. It may also provide grounds for the registration authority to cancel
the ASA¹s or VAA¹s registration.
105 Where a local authority discloses information in contravention of ISR 7,
this may be dealt with under the default power provided for the appropriate
Minister at section 14 of the Act. This power may be used where a local
authority fails, without reasonable excuse, to comply with any of the duties
imposed by the Act.
FEES: ISR 18
106 ISR 18sets out the circumstances in which an intermediary agency, an
adoption agency, the Registrar General or the court may charge a fee in
connection with services provided under the ISR.
107 ISR 18.1provides an intermediary agency with the discretion to charge
the applicant a fee in connection with processing an application under the
ISR. This will be a fee which the intermediary agency considers to be a
reasonable fee to cover any costs incurred in processing an application. It
may include any costs incurred by the intermediary agency in seeking to
identify the appropriate adoption agency, ascertaining the adoption agency¹s
views under ISR 12, and tracing the subject of the application and seeking
their consent under ISR 7.
108 ISR 18.2permits an intermediary agency to charge a fee in connection
with providing, or securing the provision of, counselling. It enables the
intermediary agency to charge a fee to any person who makes an application
to it under the ISR or any person who is the subject of an application and
is considering whether to give their consent to the disclosure of
identifying information under ISR 7.
109 Where the subject has requested that counselling and support be
provided, it is envisaged that any fees associated with providing the
counselling would normally be met by the applicant as it would not be
appropriate to charge the subject in connection with a service which they
did not initiate. There may be circumstances where the subject would be
prepared to meet those costs such as where the applicant was unable to do so
themselves.
110 The general expectation is that the intermediary agency would normally
provide the counselling itself, although it may choose to make an
arrangement with any of the bodies listed under ISR 10.4to provide
counselling services on its behalf. Where the intermediary agency secures
the provision of counselling by another agency on its behalf, ISR
18.2.apermits it to charge a fee to cover any reasonable costs it incurs in
securing that provision.
111 Where the intermediary agency secures the provision of overseas
counselling for a person, ISR 18.2.bpermits it to charge a fee to that
person to cover any reasonable costs it incurs in securing that provision.
112 ISR 18.3 enables the Registrar General to charge an intermediary agency
a fee of £10 for the provision of information under ISR 14. This is the
information the Registrar General may hold regarding the appropriate
adoption agency, information from the Adoption Contact Register or
information that would enable an application to be made for a certificate
from the Adopted Children Register.
113 ISR 18.4 enables an adoption agency to charge an intermediary agency a
fee in connection with a request under ISR 12. The adoption agency may
charge the intermediary agency a fee which it determines to be a reasonable
fee in connection with providing its views on the appropriateness of an
application or for disclosing information for the purposes set out under ISR
12.3.c.
114 ISR 18.5 enables the court to charge the intermediary agency a fee not
exceeding £20 in respect of the disclosure of information from court records
under ISR 15. This is the information which identifies the appropriate
adoption agency.
115 Where the Registrar General, the appropriate adoption agency or the
court exercises their discretion to charge a fee to the intermediary agency
under ISR 18, the intermediary agency is obliged to pay that fee. Where a
fee is charged, the intermediary agency may seek to recover these costs from
the applicant as part of the charge it may make for processing an
application.