DPA claims arising out of adoption

David Maggs looks at the issues raised where a local authority faces a damage claim over the disclosure of confidential details about adopters.

Over the last five years, my colleagues and I have seen an increasing number of damages claims brought against local authorities for the accidental disclosure of adopters’ confidential personal details to the birth family.

The process for approval as adopters is a long and onerous one. Applicants normally have a very significant level of commitment to the process. Where their personal details are accidentally released it is not unusual for potential adopters to decide to continue with the placement, even though they know that the birth parents (who may be vehemently opposed to the adoption and have a history of criminality) now have access to their personal information and whereabouts.

Where continued commitment from the adopters is evident and a pre-adoption placement is settling down well, the social care team are often very keen to continue with the adoption process and to look to insurance to fund the protective measures that need to be put in place.

Quite apart from any claim in damages, the local authority will have to ensure that the breach is notified to the Information Commissioner’s Office (ICO), consider how their processes can be tightened, and brace themselves for punitive action by the ICO.

Claim for damages – the law

Whether or not the adoption does proceed, the adoptive parents, affected by the breach of confidentiality, have two principal causes of action. These are in negligence and under the Data Protection Act 1998.

The case of BB v A County Council [2006] GWCA CIV1388 illustrates that a claim can lie in negligence.

A v Essex County Council [2003] EWCA CIV1848 confirms that a causation argument can apply (on the basis that the adopters could have pulled out of the adoption) but that is not an attractive argument to run and it sits poorly with the council’s public law duties to the child.

In Johnson v The MDU [2006] EWHC, the claimant was required under the Data Protection Act 1998 to prove financial loss before an entitlement to damages for distress was triggered. In Vidal-Hall v Google [2015], the court found that there was no need to first prove financial loss under the Data Protection Act to trigger damages for distress. Whilst we await a Supreme Court judgment to reconcile these opposing authorities often adoptive parents can establish some financial loss with little difficulty, usually arising out of the need to install protective measures or to relocate.

In most of these claims the claimant adopters are likely to be able to establish liability in negligence for foreseeable loss and damages for contravention of the Data Protection Act, along with damages for distress.

Local authorities will often be faced with the following heads of claim:

• stamp duty
• estate agent’s fees
• removal fees
• conveyancing fees
• rental costs (where it is important that the family moves away from the address known to the birth family quickly)
• increased travel costs
• relocation allowance
• loss of earnings
• distress.

Claimants’ expectations in terms of awards for distress are increasingly ambitious. Claims of up to £50,000 are not uncommon although settlement at this level is neither merited nor supported by the level of awards by the courts.

Recommendations

Good risk management will ensure that checks and controls are in place to limit the chance for these mistakes to happen in the first place. But often it is not the policy or process that is at fault but rather human error in how the process is operated.

If an error is made and a claim results, those dealing with the claim for compensation and those supporting the adoptive placement need to work together to ensure that a co-ordinated and supportive approach is taken and to ensure that the welfare of the child is not compromised by conflict with what is in the financial best interests of the authority.

David Maggs is a partner at Browne Jacobson. He can be contacted on 020 7337 1005 or This email address is being protected from spambots. You need JavaScript enabled to view it..