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United Kingdom Statutory Instruments


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STATUTORY INSTRUMENTS


2005 No. 888

CHILDREN AND YOUNG PERSONS, ENGLAND

SOCIAL CARE, ENGLAND

The Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005

  Made 22nd March 2005 
  Laid before Parliament 7th April 2005 
  Coming into force 30th December 2005 


ARRANGEMENT OF REGULATIONS


PART 1

GENERAL
1. Citation, commencement and application
2. Interpretation

PART 2

KEEPING OF INFORMATION ABOUT ADOPTIONS
3. Application of this Part
4. Information to be kept about a person's adoption
5. Storage and manner of keeping of section 56 information
6. Preservation of section 56 information
7. Transfer of section 56 information

PART 3

DISCLOSURE OF INFORMATION - GENERAL
8. Disclosure for purposes of agency's functions or for research
9. Disclosure required for purposes of inquiries, inspection etc
10. Requirements relating to disclosure
11. Agreements for the disclosure of protected information

PART 4

APPLICATIONS FOR DISCLOSURE OF PROTECTED INFORMATION
12. Manner of application
13. Duties of agency on receipt of application
14. Record of views
15. Independent review

PART 5

COUNSELLING
16. Information about the availability of counselling
17. Duty to secure counselling
18. Disclosure of information for the purposes of counselling

PART 6

THE REGISTRAR GENERAL
19. Seeking information from the Registrar General
20. Registrar General to disclose information regarding the appropriate adoption agency and the Adoption Contact Register

PART 7

MISCELLANEOUS
21. Offence
22. Fees charged by adoption agencies

The Secretary of State in the exercise of the powers conferred on her by sections 9(3), 11(4), 12(2), 56 to 64, 140(7) and (8), 142(4) and (5) and 144(2) of the Adoption and Children Act 2002[
1], with the approval of the Registrar General[2] and the Chancellor of the Exchequer[3], hereby makes the following Regulations:-



PART 1

GENERAL

Citation, commencement and application
     1.  - (1) These Regulations may be cited as the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005 and shall come into force on 30th December 2005.

    (2) These Regulations apply to England only.

    (3) These Regulations apply only in relation to adoptions on or after 30th December 2005.

Interpretation
    
2. In these Regulations - 



PART 2

KEEPING OF INFORMATION ABOUT ADOPTIONS

Application of this Part
     3. The requirements of this Part in relation to the keeping of information about a person's adoption apply - 

Information to be kept about a person's adoption
    
4.  - (1) Paragraphs (2) and (3) prescribe, for the purposes of section 56 of the Act, the information that an adoption agency must keep in relation to a person's adoption ("section 56 information").

    (2) The adoption agency must continue to keep the case record that was set up in respect of the adopted person under Part 3 of the Adoption Agencies Regulations 2005[
6] or under the Adoption Agencies Regulations 1983[7].

    (3) Subject to paragraph (4) the adoption agency must also keep - 

    (4) The adoption agency is not required to keep any information falling within paragraph (3)(a) to (c) if the adoption agency considers - 

Storage and manner of keeping of section 56 information
     5. The adoption agency must ensure that section 56 information in relation to a person's adoption is at all times kept in secure conditions and in particular that all appropriate measures are taken to prevent theft, unauthorised disclosure, damage, loss or destruction.

Preservation of section 56 information
    
6. The adoption agency must keep section 56 information in relation to a person's adoption for at least 100 years from the date of the adoption order.

Transfer of section 56 information
    
7.  - (1) Where a registered adoption society[8] intends to cease to act or exist as such, it must transfer any section 56 information which it holds in relation to a person's adoption - 

    (2) A registered adoption society that transfers its records to another adoption agency by virtue of paragraph (1) must, if its activities were principally based in the area of a single local authority, give written notification of the transfer to that authority.

    (3) An adoption agency to which records are transferred by virtue of paragraph (1) must give written notification of the transfer to the registration authority.



PART 3

DISCLOSURE OF INFORMATION - GENERAL

Disclosure for purposes of agency's functions or for research
     8.  - (1) An adoption agency may disclose section 56 information that is not protected information[9] as it thinks fit for the purposes of carrying out its functions as an adoption agency.

    (2) An adoption agency may disclose section 56 information (including protected information) to - 

Disclosure required for purposes of inquiries, inspection etc.
     9. An adoption agency must disclose section 56 information (including protected information) as may be required - 

Requirements relating to disclosure
     10. The adoption agency must make a written record of any disclosure made under regulation 8 or 9, which must include - 

Agreements for the disclosure of protected information
    
11.  - (1) A prescribed agreement for the purposes of section 57(5) of the Act is - 

    (2) The adoption agency must keep a written record of any such agreement and that record must include - 



PART 4

APPLICATIONS FOR DISCLOSURE OF PROTECTED INFORMATION

Manner of application
    
12. An application to an adoption agency for the disclosure of protected information under section 61 or 62 of the Act must be in writing and must state the reasons for the application.

Duties of agency on receipt of application
    
13. On receipt of an application for the disclosure of protected information under section 61 or 62 of the Act an adoption agency must take reasonable steps to confirm - 

Record of views
    
14. An adoption agency must ensure that any views obtained under section 61(3) or 62(3) or (4) of the Act are recorded in writing.

Independent review
    
15.  - (1) The following determinations by the appropriate adoption agency in relation to an application under section 61 of the Act are qualifying determinations for the purposes of section 12 of the Act (independent review of determinations) - 

    (2) The adoption agency must give the relevant person written notification of the determination, which must - 

    (3) If the adoption agency receives notification from the Secretary of State that the relevant person has applied for a review by an independent review panel of the qualifying determination, the agency must, within 10 working days of receipt of that notification, send to the Secretary of State - 

    (4) The adoption agency must not take any action in accordance with its original determination before - 

    (5) The adoption agency must have regard to any recommendation of the independent review panel in deciding whether to proceed with its original determination.

    (6) In paragraph (3) - 

    (7) In this regulation "the relevant person" is - 



PART 5

COUNSELLING

Information about the availability of counselling
     16.  - (1) An adoption agency must provide written information about the availability of counselling to any person - 

    (2) The information provided under paragraph (1) must include information about the fees that may be charged by persons providing counselling.

Duty to secure counselling
    
17.  - (1) Where a person mentioned in regulation 16(1) requests that counselling be provided for him, the adoption agency must make arrangements to secure counselling for that person.

    (2) The adoption agency may provide the counselling itself or make arrangements with any of the following persons for provision of counselling - 

    (3) In this regulation "Board" means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972[14] or, where the functions of a Board are exercisable by a Health and Social Services Trust, that Trust.

Disclosure of information for the purposes of counselling
     18.  - (1) An adoption agency may disclose any information (which may include protected information) which is required for the purposes of providing counselling to any person with whom it has made arrangements to provide counselling.

    (2) An adoption agency must make a written record of any disclosure made by virtue of this regulation.



PART 6

THE REGISTRAR GENERAL

Seeking information from the Registrar General
    
19.  - (1) Where - 

the agency must seek that information from the Registrar General.

    (2) Where an adoption agency seeks information from the Registrar General under paragraph (1) the agency must provide him in writing with the following information, so far as it is known - 

Registrar General to disclose information regarding the appropriate adoption agency and the Adoption Contact Register
    
20.  - (1) The Registrar General must - 

    (2) The appropriate adoption agency must pay any fee that the Registrar General determines is reasonable for the disclosure of information under paragraph (1)(b).



PART 7

MISCELLANEOUS

Offence
    
21. A registered adoption society which discloses any information in contravention of section 57 of the Act (restrictions on disclosure etc. of information) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Fees charged by adoption agencies
    
22.  - (1) Subject to paragraph (2) an adoption agency may charge a fee which it determines to be a reasonable fee - 

    (2) No fee shall be payable by an adopted person in respect of any information disclosed to him under section 60, 61 or 62 of the Act in relation to any relative of his or for any counselling provided to him in connection with any such disclosure.

    (3) An adoption agency must, before providing a service to any person for which it may charge a fee under this regulation, give the person information about its fees.


Filkin
Parliamentary Under Secretary of State Department for Education and Skills

22nd March 2005



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations prescribe certain matters for the purposes of the regime set out in sections 56 to 65 of the Adoption and Children Act 2002 ("the Act"). The regime provides for adoption agencies to keep information about each adoption and to deal with applications for disclosure of such information. The regime will apply in relation to persons adopted on or after 30th December 2005. In relation to persons adopted before that day, the Adoption Agencies Regulations 1983 (S.I. 1983/1964) will continue to have effect.

Part 2 provides for the keeping of information in relation to persons adopted on or after 30th December 2005. Regulation 4 prescribes the information that must be kept ("section 56 information"). Part 2 also deals with storage and transfer of section 56 information. Regulation 6 requires that section 56 information be kept for at least 100 years from the date of the adoption order.

Part 3 makes general provision for the disclosure of section 56 information and protected information (which is defined in section 57(3) of the Act). Under regulation 8 an adoption agency may disclose section 56 information that is not protected information as necessary for the purpose of its functions or for research. It may also disclose any section 56 information, including protected information, to persons providing services in relation to its functions under section 61 or 62 of the Act (for example a registered adoption support agency carrying out enquiries on its behalf). Regulation 9 provides for disclosure of information to specified persons including persons holding inquiries, the Commission for Social Care Inspection and the Secretary of State. Regulation 10 requires a written record to be kept of any disclosure. Regulation 11 prescribes the requirements for an agreement under section 57(5) of the Act.

Part 4 relates to applications for disclosure of protected information under section 61 (information about adults) and 62 (information about children). Regulations 12 to 14 deal with procedural matters in relation to such applications. Regulation 15 makes provision for independent review of certain decisions of the adoption agency in relation to applications under section 61.

Part 5 makes provision for counselling. Regulation 16 requires adoption agencies to provide information about availability of counselling for persons seeking information about an adoption or persons about whom information is being sought. Regulation 17 requires adoption agencies to secure counselling where requested by persons seeking information.

Part 6 relates to the Registrar General. Adopted adults have a right under section 60 of the Act to request information about their birth records. They must first approach the appropriate adoption agency, which then requests the information from the Registrar General (who is obliged to provide it by virtue of section 79(5) of the Act). Regulation 19 requires the appropriate adoption agency to seek that information and prescribes the manner of the application for it. Regulation 20 requires the Registrar General to disclose information to any person that may assist the person in making contact with the adoption agency that holds the records of his adoption. Regulation 20 also requires the Registrar General to disclose information from the Adoption Contact Register where requested by the appropriate adoption agency in connection with an application under section 60, 61 or 62.

Part 6 deals with miscellaneous matters. It creates an offence of disclosing information in contravention of section 57 of the Act. Regulation 22 prescribes fees that may be charged by adoption agencies in relation to disclosure of information and counselling.

A Regulatory Impact Assessment has been carried out for these Regulations and a copy has been placed in the library of each House of Parliament. Copies of the Regulatory Impact Assessment can be obtained from the Department for Education and Skills' website
http://www.dfes.gov.uk/ria/.


Notes:

[1] 2002 c.38. These powers are exercisable by the appropriate Minister, who is defined in section 144(1) of the Act in relation to England as the Secretary of State, in relation to Wales as the National Assembly for Wales and in relation to England and Wales as the Secretary of State and the National Assembly for Wales acting jointly.back

[2] The Registrar General's approval is required for regulation 19(2) by virtue of section 65(5) of the Act.back

[3] The approval of the Chancellor of the Exchequer is required for regulation 20(2) by virtue of section 65(4) of the Act.back

[4] 2000 c.14.back

[5] See section 42 of the Health and Social Care (Community Health and Standards) Act 2003 (c.41).back

[6] S.I. 2005/389.back

[7] S.I. 1983/1964.back

[8] See section 2(2) of the Act.back

[9] See section 57(3) of the Act for the meaning of "protected information".back

[10] 1989 c.41.back

[11] 1974 c.7.back

[12] 1971 c.80.back

[13] S.I. 1987/2203 (N.I. 22)back

[14] S.I. 1972/1265 (N.I. 14).back



ISBN 0 11 072668 5


 © Crown copyright 2005

Prepared 7 April 2005


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URL: http://www.bailii.org/uk/legis/num_reg/2005/20050888.html