HM Courts and Tribunals Service

3. Mrs H complains about the service she received from His Majesty’s Courts & Tribunals Service (HMCTS) in December 2022. She complains that. HMCTS lost her adoption file, and failed to accept any responsibility for the error

4. As a result of the claimed failings, Mrs H explained she will never be able to find out the circumstances of her birth, or her father’s name.

5. She has struggled throughout her life with not knowing the reasons she was given up for adoption, and also with the fear of finding out. However, she had always believed that when the time was right for her, she would be able to face this.

6. Now finding out that she cannot, and never could, has undermined the principles by which she has lived her life, and resulted in a constant anxiety that may take a lifetime to process. If she had known this many years ago, it may have helped her achieve a closure which may now not be possible.

7. She has also been left with a sense of regret that maybe something could have been done if she had known earlier that her paperwork had been lost. Maybe that it could have been located.

8. The mental health issues caused by this have also had a linked physical impact due to the effects of anorexia and obsessive-compulsive disorder (OCD).

9. By bringing the complaint to PHSO, Mrs H is seeking for HMCTS to accept responsibility, and to provide a formal apology for the loss of the file and the failure to provide an explanation of what happened.

10. Mrs H was adopted as a child. In January 1995 she wrote to the court to request her birth name.

11. In July 1995 she visited Wallington Magistrates Court to request sight of the adoption file. She was told that her file was held but could not be opened until I had received counselling, a rule which was for in place for all people adopted at the time that Mrs H was.

12. While the person she spoke to confirmed that the file was held, she was not allowed to see it at that time. Mrs H did not wish to proceed with counselling at the time and so took no further steps at the time to view the file.

13. In 2021/2022, she decided she was now ready to view the file and made a new request. By this time, the original Court she had visited had and all adoption files had been sent to a central archive.

14. Although HMCTS received Mrs H’s request, it was unable to locate her full file. All that was found in its place during the search was a letter Mrs H had sent at the time she made her original request.

15. Mrs H complained to HMCTS about the missing file. HMCTS responded and said that, although it recognised her concern, given the time that had passed, it was unable to investigate what had happened to the file in the intervening years since the file had been created. For that reason, it was unable to help her further.

Administrative background

18. To put this complaint, and our decision, into context, it may help to explain more about HMCTS’s record keeping and the guidance surrounding the retention of adoption records.

19. Adoption records are usually kept by the relevant adoption agency, that being the agency responsible for placing the child. This could be a Local Authority or voluntary agency. In some cases, the court which ordered the adoption may also hold a copy of the record. Mrs H approached Adopt South London, and they carried out an extensive search across many agencies but were unable to locate the records. They referred her back to Croydon Court

20. In 2010, the Ministry of Justice (the Government Department responsible for overseeing HMCTS) announced the phased closure and sale of several court buildings as part of a plan to fund improvements to the court system, such as new digital services. The court which Mrs H originally approached for sight of her file was one of these courts.

21. HMCTS explained that some records held by the court were transferred to the central archive. However, it could not confirm whether these would, or should, have included Mrs H’s adoption file.

22. HMCTS further explained that, although work had begun at the central archive to index the files it held, this work had been paused. At the time of our investigation, HMCTS explained this pause had not been lifted although it still intended to do so. It should be noted here that the central archive in question is not the responsibility of HMCTS. Sutton Archives and Family History Centre is the designated local authority archive managed by the London Borough of Sutton. As such, HMCTS doesn’t have operational control or the archive or its indexing processes.

23. HMCTS explained that, until 1975, there was no legislation stipulating how long adoption records should be kept. We understand this has since changed and, following the introduction of the Children Act 1975, records must now be kept for a fixed period (originally 75 years but, since 2002, this has been increased to 100 years).

24. HMCTS also said that adoption records can also be held in several other places, such as with a Local Authority.

25. As part of our investigation, we also looked at publicly available information on the process for obtaining adoption records in England and Wales. In particular, we looked at the role of the General Register Office (GRO).

26. The GRO, which is part of His Majesty's Passport Office (not HMCTS), is responsible for providing official information on births, adoptions, marriages, civil partnerships and deaths in England and Wales.

27. According to the GRO, anyone over the age of 18 can access their birth records if they do not have them because they were adopted. However, everyone adopted before 12 November 1975 will need to attend a counselling session with an approved adoption advisor first.

28. The person seeking the adoption details can order a copy of their original birth certificate (if they know their birth details) or apply to the GRO’s Birth certificate Information Before Adoption (BIBA) service.

29. The GRO also maintains an Adoption Contact Register (ACR). This allows someone to register their desire to for contact with a birth relative. The GRO says this is not a tracing service and, for a connection to be made, both parties must be on the Register. If both parties are on the Register, the GRO will share contact details. However, it makes clear that the Register may also be used for, and by, people who have expressed a desire not to be contacted. Mrs H enrolled with the ACR in December 1996.

30. The GRO provides guidance to customers on what records its hold about adoption. It explained that the level of information contained on an adoption certificate will vary dependent on the certificate requested. It says a Full Certificate is a copy of ACR entry and includes the date of the order and the name of the court, as well as the particulars of the adoptive parent(s). A Short Certificate contains no reference to the fact of adoption and shows only the adoptive name and surname, sex, date of birth and country or district of birth.

31. In some cases, the person may make an application to receive information from court records (under Section 60(4) of the Adoption and Children Act 2002). If granted, the court will locate the court records relevant to the application and send copies of the document. However, the court may edit the documents before sending them to the applicant.

Reasons for our decision

32. Mrs H complains that her adoption file has been lost, and that HMCTS has refused to accept any responsibility for this. She has contacted them many times over several years, and no explanation has been given for the loss. She was told it is possible they are in the Archives but work to catalogue them has been halted and there are no current plans for it to continue.

33. We understand the importance of this complaint to Mrs H and recognise the difficulty and frustrating position she finds herself in. She has told us with great eloquence why this matters so much to her. She has said she does not know, and will likely never know, either her father’s name or the reasons for her adoption. As she has told us, this is not something she could ever put a price on.

34. It is additionally frustrating for Mrs H that HMCTS cannot be clearer on where her adoption records are or even whether they still exist. To fall in line with our Principles of Good Administration – being open and accountable – we expect organisations to create and maintain reliable and usable records as evidence of their activities. They should manage records in line with recognised standards to ensure that they can be retrieved and that they are kept for as long as there is a statutory duty or business need. However, we need to look at the individual circumstances before deciding whether an organisation has, or has not, met our expectations.

35. The evidence shows that, in this case, Mrs H’s adoption came at a time when there were no rules governing how long a court should retain an adoption record. However, as Mrs H has noted, the letter from 1995 that was found in place of her file has her birth name written on it. Presumably this was written by the staff member that Mrs H spoke to at the court, who checked that the file was there.

36. However, while the file may well have been there in 1995, this does not go any way to giving us a clearer idea of what could have happened since then, and whether HMCTS was responsible.

37. We note that, since that time, the law has changed and the guidance surrounding the retention of these records is now must stronger than it once was. Whilst we recognise this is likely to be of little consolation to Mrs H, we hope it provides her with reassurance of an improvement in this area.

38. We should add that, even if the records had been made available, it is not clear this would have provided answers to one of Mrs H’s key questions, namely, why she was adopted. We have seen nothing to suggest that an adoption record would have provided information beyond when the adoption took place and who was involved. Given the sensitivity, there is every possibility that the reasons for the adoption were not fully recorded or, if so, would not have been made available to Mrs H.

39. We have noted the confusion surrounding the indexing work taking place at the central archive. As we have explained, we expect organisations to maintain records in a retrievable manner. We are also aware of the expectations set out by the Information Commissioner’s Office (ICO) that organisations should ensure that any personal data it keeps is adequate, relevant, limited to what is necessary, and not kept for longer than needed (either for the purpose or by law).

40. However, as stated, HMCTS does not have control over the archive facility, and so it is not responsible for the pausing of its indexing exercise. Therefore, it is not on HMCTS to ensure the records held there are in keeping with the ICO’s expectations. Complaints about a local authority (who would be responsible for the archives) can me made to the Local Government and Social Care Ombudsman (LGSCO). Alternatively, this may be a concern that Mrs H wishes to bring to the attention of the Information Commissioner’s Office (the ICO).

41. We acknowledge that these have been very difficult circumstances for Mrs H, but there does not appear to be anything we could say HMCTS could or should have done differently. As a result, we do not expect to uphold this complaint.

1. We would like to thank Mrs H for bringing this complaint to our attention. We were very sorry to read of the lengthy search she has had for her adoption records, and the impact that being unable to locate them has had.

2. Having reviewed the available and relevant evidence, we have not identified potential failings that would allow us to decide that any maladministration or service failure that led to the loss of Mr’s H’s adoption records was the responsibility of HMCTS. Therefore, we do not uphold Mrs H’s complaint.