The High Court has overturned a decision of the Information Commissioner directing a health board to disclose to a woman edited records on her adoption.
The commissioner had argued that the records did not identify the birth mother and that disclosure could be made in the public interest. The court's decision has important implications for adopted people seeking information about their birth mothers.
The woman, now in her 40s, was adopted at birth and for years has been seeking information about her birth mother and is anxious to contact her. She had told the board she had contacted a private detective over 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.
It was argued that release of the records sought breached her constitutional right to privacy and protection of her family and marriage.
The court heard the birth mother was unmarried when she gave birth to the applicant. Mr Justice Thomas 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.
She had concerns not only for her good name and reputation but "principally for the harmony of her marriage and the stability and cohesion of her family".
In his judgment yesterday quashing the commissioner's decision to direct release in edited form of the records, Mr Justice Smyth held that the decision was made in breach of fair procedures in that the birth mother was not given the right to make representations on why the records should not be released.
He also held that 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 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 said.
If trust was "to be sacrificed on the altar of transparency and a contemporary passion for accountability", the "tragic circumstances of young girls who, through ignorance, a sense of shame, fear, absence of family support and/or bewilderment, giving birth like beasts in a field or abandoning their babies in church porches, car parks or garbage bins, may continue into the future because there is no one they can completely trust or confide in", he said.
He believed that if the records sought were disclosed to the adopted woman, even in the edited form directed by the commissioner, this would prejudice the giving of similar information to this and other health boards. He accepted submissions from the board that it was important such information be given to it and other health authorities.
"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 health board against a decision of the commissioner of October 24th, 2002, to release to the adopted woman, in edited form, a record in its adoption file and other records in its social welfare file relating to the woman's adoption. The judge adjourned the case for two weeks to allow the parties consider the judgment and any issues arising.
