Adoption proceedings, identity and an accidental disclosure

In A Health and Social Care Trust v MC and DM[1] (a Northern Ireland case), Humphreys J considered an unusual application arising from care and adoption proceedings concerning a proposed change to a child’s forename and an application by the Trust to withhold information from the child’s parents where there was inevitable concern about identification of the placement. The case is a useful reminder to local authority lawyers seeking permission for the non-disclosure of relevant information.

The issue arose because the child’s forename, GM, was substantially similar to the surname of the prospective adopters. Social workers identified the difficulty before placement and discussions took place about the desirability of changing the child’s forename should the adoption proceed. After moving to the placement in March 2026, the child became known by an alternative name.

The Trust subsequently accepted that this important issue had not been disclosed either to the parents or to the court before the placement occurred. It also accepted that the use of the alternative name should not have happened, as it was a decision taken by individuals who did not hold parental responsibility, albeit that no blame attached to the prospective adopters, who had been encouraged in that course of action by the Trust.

The matter came to light when information revealing the reason for the proposed future name change was inadvertently disclosed to the father’s solicitors. The Trust then sought an order permitting it not to disclose the specific reason for the proposed name change to the parents and sought restrictions preventing the father’s legal representatives from passing that information to their client. The Trust argued that disclosure could lead to identification of the placement and thereby create a risk of harm to the child.

As was pointed out [8], the starting point is the fundamental principle that parties are entitled to disclosure of material which may be taken into account by the court when reaching a decision adverse to them. This principle applies with particular force in proceedings concerning adoption and the permanent severance of family ties; any non-disclosure must be justified by exceptional reasons. As per the Court of Appeal authority of Re T[2], the relevant considerations were:

(1)  Is the material relevant to the issues, or can it be excluded as being irrelevant or insufficiently relevant to them?

(2)  Would disclosure of the material involve a real possibility of significant harm to the child and, if so, of what nature and degree of probability?

(3)  Can the feared harm be addressed by measures to reduce its probability or likely impact?

(4)  Taking account of the importance of the material to the issues in the case, what are the overall welfare advantages and disadvantages to the child from disclosure or non-disclosure?

(5)  Where the child’s interests point towards non-disclosure, do those interests so compellingly outweigh the rights of the party deprived of disclosure that any non-disclosure is strictly necessary, giving proper weight to the consequences for that party in the particular circumstances?

(6)  Finally, if non-disclosure is appropriate, can it be limited in scope or duration so that the interference with the rights of others and the effect on the administration of justice is not disproportionate to the feared harm?”

(7)  The burden rests squarely upon the party seeking non-disclosure to satisfy the court not merely that disclosure carries risk but that withholding relevant information is strictly necessary and proportionate. The need for a fair hearing will ordinarily require disclosure unless the contrary is convincingly demonstrated.

The court’s decision

The court refused the application. It rejected an argument that, while the proposed change of forename was relevant, the reason for the change was not. The identity of a child is a matter of profound importance. A surname will ordinarily change following adoption. A forename generally will not. The fact that the child was named after his father is not disputed and plainly formed part of his identity and his connection to his birth family [11]. A mere possibility of facilitating identification of the carers did not, of itself, the court said, establish a real possibility of significant harm; the local authority must, by reference to the particular facts of the case, demonstrate why identification would be likely to generate harmful consequences [13].

The court was influenced by the practical reality that the information was unlikely to remain confidential indefinitely. Post-adoption contact was proposed and the relationship between the father’s first name and the adopters’ surname meant that the information could readily emerge in the future [15]. It was difficult to see how the connection between the first name of the father and the surname of the adopters could remain unknown indefinitely [21]. The possibility of delaying disclosure had been considered but it seemed likely that at some point the information would become known in a less controlled environment. [22] While the parents had had their difficulties, particularly in relation to substance abuse, neither had sought to identify, locate or undermine the foster placement; on the contrary, relations had been good and the parents spoke warmly of the prospective adopters with positive interaction having been observed between them and the father [16].

On the evidence, the speculative possibility of future identification carried less weight than the detriment flowing from continued secrecy in the circumstances of this case [19]. Non-disclosure had already created suspicion and mistrust where the birth parents knew that information was being withheld from them in relation to a very important matter. This could only be exacerbated by a court order preventing disclosure from ever taking place and could serve to undermine the good relations established, and the prospects of successful long-term contact arrangements [20].

Whilst accepting that there was a legitimate concern about protecting the confidentiality of adoptive placements, Humphreys J concluded that the Trust had failed to establish a real possibility of significant harm if the information were disclosed.

“There is no evidence of any real possibility of significant harm, save for the generic point that placement identification can be a destabilising event. There is nothing in the evidence before the court that begins to suggest that these birth parents will take any step to interfere with the placement or to cause any harm to GM.” [24]

While both adopters and parents had article 8 rights and the parents had article 6 rights, the balance did not, in this case, come down in favour of the adopters [30]. Non-disclosure in family proceedings remained exceptional and, in this case was not strictly necessary or proportionate.

Issues for local authority lawyers

The judgment reminds of the importance of transparency in public law proceedings. It serves as a reminder that decisions affecting a child’s identity should not be taken without proper authority or without informing those with parental responsibility and the court.

The need for care in the recording of information in documents and checking of them by both the local authority and its legal advisors prior to service hardly needs stressing.

The case is also a reminder that non-disclosure has a very high test. It is particularly interesting that the court was not persuaded on the simple fact of there being a risk of identification of a placement (often a major concern); at very least, the local authority needs to put forward some case specific argument, particularly where post-adoption contact is envisaged. An argument based simply upon “being on the safe side” may well be unsuccessful. Likewise, the court rejected either delayed or limited disclosure on the basis that this would still leave much room for suspicion and concern [27]. Of course, in many other cases, there will be significant identifiable risks from disclosure of such information, but it will need to be spelled out.

Graeme Bentley is a Principal Solicitor in Invicta Law’s Child Protection team, with over 40 years of experience in family law.

[1] [2026] NIFam 21

[2] Re T (Children: Non-Disclosure) [2024] EWCA Civ 241