12 MAY 2006
(Court of Appeal; Buxton and Sedley LJJ and Bodey J; 21 November 2006) Although the adoption had been an open one the authority had agreed, in response to a specific request from the adoptive parents, to keep the identity of the adoptive parents and the area in which they lived secret from the birth family, but had failed to do so. The family had gone on to adopt the child, notwithstanding concerns about having been exposed to hostility from the birth family as a result of the local authority's actions. A series of unpleasant incidents were identified by the adoptive family as a campaign of harassment by the birth family; eventually the adoptive family moved some distance away to escape. The adoptive family claimed damages from the local authority for psychiatric injury and for loss and damage arising from the authority's negligence. The judge found that there had been a breach of the authority's duty of care to keep the family's identity confidential, but that there was no proof of a sustained campaign of interference and aggression by the family or at all.
The authority owed and continued to owe a duty to the adoptive parents to ensure that the terms of its undertaking not to disclose personal information were respected by its employees, even in an open adoption. Such a duty of care did not inhibit the general adoption process, because it did no more than hold the adoption agency to what ought to be good practice. The adoptive family's decision to continue with the adoption after the disclosure did not prevent any subsequent claim in relation to the disclosure, not least because a duty of care in negligence was a duty to guard against the risk of a detrimental event occurring; it was foreseeable that the adoptive parents would not withdraw following the disclosure, in which case the risk of the detrimental event consequent upon disclosure remained in place. On the facts it had not been established that there had been a campaign against the adoptive family by the birth family, although, unlike the judge, the court considered that a vendetta against the family by someone had been established.