Woman not allowed to contact mother

IN a decision with important implications for adopted persons seeking information about their birth mothers, the High Court has overturned a decision of the Information Commissioner directing a health board to disclose to a woman edited records relating to the woman’s adoption.

The commissioner had argued the records were non-identifying of the birth mother and that disclosure could be made in the public interest.

The woman, now in her forties, was adopted at birth and has been seeking for years information about her birth mother and is anxious to contact her. She had told the board she had contacted a private detective about the matter.

However, the court was told the birth mother did not wish to be contacted and that she had been assured whatever she had disclosed to the South Western Area Health Board would be kept confidential.

Release of the records sought breached her constitutional rights to privacy and protection of her family and marriage, it was argued.

The court heard the birth mother was unmarried when she gave birth to the applicant. Mr Justice Smyth said both the birth mother and her adopted child had made “new and more structured lives” since.

The birth mother had long since married and had a husband and family and did not wish that “structured trust and security” to be shattered by a disclosure that might be brought about by being contacted by the applicant.

The board felt itself “honour bound” to keep faith with assurances of confidentiality which it had given to the birth mother years ago.

The judge said the persistence of the woman’s inquiries about her adoption had angered the birth mother’s husband and caused the birth mother to seek medical advice and treatment.

In his judgment quashing the commissioner’s decision to direct release in edited form of the records sought, Mr Justice Smyth held the decision was made in breach of fair procedures in that the birth mother was not given the right to make representations as to why the records should not be released.

He also held release of such records could create fear among pregnant women about confiding in health boards and could put the life of a baby at risk.

It was in the public interest that the board’s promise of non-disclosure of the records made to the birth mother, who at the time was “a distraught young mother who was little more than a child herself”, should be honoured, he added.

“It is, in my judgment, not in the public interest that persons such as the birth mother in the instant case should have their distress compounded, and maybe put at risk the life of a baby because there is in fact no health authority they can completely trust.”

He was granting the appeal by the SWAHB, brought on a point of law under the Freedom of Information Act 1997, against a decision of the commissioner of October 24, 2002, to release to the adopted woman, in edited form, a record in the board’s adoption file regarding her adoption and other records in the board’s social welfare file relating to the adoption of the woman.

The judge noted the commissioner had held that non-identifying information about the birth mother created before the FoI Act was commenced might be released to her adopted daughter.

The commissioner had also held that records containing medical information about the birthmother, which records were created prior to the FoI Act could be disclosed.

Arguments by counsel for the board that the commissioner had “jumped the gun” on this matter were “persuasive”, the judge said.