We’ve written before, (13 May 2021; 12 August 2021) about the very limited circumstances in which an adoption order can be set aside (sometimes described as ‘revoked’). The current law is that it is possible for an order to be set aside if the court finds that it wasn’t validly made. Such situations can arise through procedural errors, although rarely.
Occasionally, we receive enquiries from adults who want to be ‘un-adopted’ – although the formal order was validly made when they were children – because of their own experiences of being an adopted person. However, being adopted changes your status so profoundly, normally this can’t be reversed. This problem is currently being considered by the Supreme Court.
In the X and Y case, discussed in this post, two teenagers’ adoptive mother had called on the High Court’s inherent jurisdiction to apply to set aside the adoption of the older child. The children (adopted at ages four and five) hadn’t fully settled with her and the older child was made subject to a child arrangements order in 2023 that gave her birth mother parental responsibility. However, the child didn’t think this was enough; she wanted to be un-adopted. The adoptive mother’s application to set aside the adoption was unsuccessful in both the High Court and the Court of Appeal. Her application was supported by both the children as well as the birth mother. The local authority didn’t oppose them. (The younger child was still in touch with the adoptive mother and did not herself want to be un-adopted but she thought there should be a way her older sister could be). There was therefore no party to put the opposing point of view, so the Court of Appeal invited the Department for Education (DfE) to join as ‘intervener’.
Last week, the Supreme Court heard an appeal against the Court of Appeal decision, which we’ll summarise briefly first.
Restatement of the law by the Court of Appeal
In Re X And Y (Children: Adoption Order: Setting Aside) [2025] EWCA Civ 2, heard in November 2024, the Court of Appeal confirmed that there was no power for the High Court to use its inherent jurisdiction to set aside an adoption order on the basis of the children’s welfare. The Court of Appeal upheld the earlier decision by Mrs Justice Lieven in Re X and Y (Revocation of Adoption Orders) [2024] EWHC 1059 (Fam) to this effect. They said that a decision based on a differing opinion about another family by Mrs Justice Theis in AX v BX (Revocation of Adoption Order) [2021] EWHC 1121 (Fam) had been wrong. In the High Court, Lieven J had said the inherent jurisdiction power was limited to set aside an adoption order where there’d been procedural irregularity but couldn’t be used solely on welfare interests. In summary, the Court of Appeal made the following points:
- Discussion of the inherent jurisdiction to set aside an adoption on welfare grounds that had featured in a few cases since 2013 was ‘a misunderstanding’.
- If there was an application for permission to appeal out of time (i.e. after the standard time limit on making appeals) the child’s welfare would be a factor.
- There are some statutory provisions in the court rules to set aside an order if an error is discovered.
- The court interpreted the inherent jurisdiction more narrowly than Lieven J, because they said it wasn’t necessary to use the inherent jurisdiction to remedy a procedural irregularity and an invalid order. That could be done through statutory rules.
- In conclusion, the only way to set aside a validly made adoption order on the basis of a later breakdown was to apply for leave to appeal out of time. Therefore the High Court has no jurisdiction to set aside a validly made order.
Procedural irregularities
A recent example of an order being set aside because it hadn’t been validly made is Re X [2025] EWFC 396 B . HHJ Cope found that a child’s birth father might not have received notice of the adoption application being heard in Bristol Family Court. An adoption order had been made in the context that another judge had believed that the father had been served with notice, but just the next day it transpired that he had changed address and might not have been served. HHJ Cope ruled that there had been a procedural irregularity and made an order that the father could apply to set the order aside if he wanted to apply for leave to oppose an adoption order being made. If he didn’t apply within a time limit of 14 days, the adoption order would stand and be sealed by the court. This judgment was only published a couple of weeks ago, although it was made in August last year. We would assume that the matter has now been resolved.
This application by the local authority wasn’t to the High Court and wasn’t about the child’s welfare. It was a procedural issue. HHJ Cope specifically relied on Re X And Y in the Court of Appeal where the Court stated at para 64:
‘There may also be cases, where the failure to serve a party has been so quickly identified that the court, whether the High Court or the Family Court, can correct the position by using its powers under the Family Procedure Rules 2010, FPR 27.5.’
The Supreme Court considers Re X and Y
The Court of Appeal decision was handed down just over a year ago, in January. The adoptive mother successfully applied to the Supreme Court for permission to appeal against the decision. The hearing was held on 4th February and can be viewed here. The court heard from barristers (all at KC level) representing the adoptive mother; the birth mother; the older daughter; the younger daughter; and the Secretary of State for Education. It will probably be several months before the judgment emerges.
In the meantime, the Court of Appeal decision stands – a validly made adoption order is permanent.
Here are few points of interest to highlight from the Supreme Court hearing
At the beginning of the hearing, the judges asked about a reporting restriction order (RRO). The lawyers wanted to maintain the children’s anonymity (although they are now adults) but there was no RRO in place. No press had attended the High Court hearing so no RRO had been sought then. In the CA, there wasn’t even any discussion of a RRO. This was eventually resolved by agreeing that the use of initials throughout the broadcast Supreme Court hearing meant that a RRO wasn’t necessary. Instead the Court would anonymise all parties in their judgment, similarly to the Court of Appeal. At one point, the barrister for the older child referred the court to obsolete (2014 and 2018) guidance on anonymisation. No one seemed aware of the current guidance, issued in 2024.
The judges expressed doubts that the inherent jurisdiction was still available to make the orders the appellant wanted, because there were no longer any children involved, the two girls having reached 18. They also doubted whether there was power under the inherent jurisdiction to change someone’s parenthood. There was a good deal of discussion about the scope of the inherent jurisdiction.
There were some interesting points made by the judges that a court couldn’t interfere with parenthood for a child who fell out with their birth parents (to the extent of suffering harm), so how could they with adoptive parenthood? (The state would respond by e.g. taking the child into care or providing health treatment, so there wouldn’t be a gap to be filled by the High Court).
The legal representatives for the adoptive mother, birth mother and older daughter all maintained that there was a power to use the inherent jurisdiction to set aside an adoption order in the child’s welfare. The barrister for the younger daughter (now aged 19) said that her client accepted that the legislation intended an adoption order to be permanent although she supported her older sister’s wishes. She would have liked some sort of exception to be found. The barrister for the Secretary of State argued against revocation on the basis of both law and policy, Neither the lawyers for the younger daughter nor the Secretary of State argued that this was possible under the inherent jurisdiction.
There were three interveners as well as the DfE: the Association of Lawyers for Children; CoramBAAF; and the International Centre for Family Law, Policy and Practice. They had submitted written arguments but didn’t have lawyers speak in court. These were only fleetingly referred to, so we don’t yet know what their stance was.
There is a mechanism whereby a child can be ‘re-adopted’ under section 45(6) ACA 2002 i.e. adopted again by someone else. So it was suggested that could work for a young child whose identity needs were for her to return to her birth mother. However the adopted older sister in this case had strongly rejected that idea. She said this would be another artificial situation, not a restoration of her birth identity,
The appellant’s lawyers said that there have been only two reported cases where the inherent jurisdiction was successfully used to set aside an adoption (PK v Mr and Mrs K [2015] EWHC 2316 (Fam) and AX & BX 2021 above). Both went through by consent. They said this suggested that use of the inherent jurisdiction to help the child in this case wouldn’t ‘open the floodgates’ to undermining adoption as a policy (as had been argued by the DfE in the Court of Appeal).
The applicants weren’t relying on human rights arguments i.e. they weren’t saying adoption law is incompatible with Article 8 family rights. Although they talked about the child’s sense of identity, their one argument was that there was a welfare need not addressed by the legislation that the inherent jurisdiction could remedy. There was no rerference in the hearing to children’s identity rights under the UN Convention on the Rights of the Child but perhaps this is cited in some submissions by the interveners.
Comment
Although as the judgments in the lower courts note, adoption breakdown is not rare, the circumstances here are probably unusual in that the birth mother had gone on to have more children, who lived with her, and the girls in this case therefore felt wrongly and illogically excluded. The birth mother’s PR for the older girl was restored by a child arrangements order when she was in her mid teens.
It seemed from the brief references to the history of the adoption that the children had been allowed to drift in foster care for too long after removal, while still having contact with their birth mother, and there being long delays in doing life story work with them. There was a two year interval between the care and placement orders and the adoptive placement. The adoptive mother had recognised the continuing bonds between the girls and their birth family, although we don’t know what social workers’ views might have been at the time. Of course, the court that made the adoption orders more than ten years ago had based that decision on the best evaluation it could of evidence about the children’s welfare at that time. Placement orders had been made in 2010, which we note was prior to the sea-change brought in with Re B and Re B-S in 2013. Looking at the history of the case, as related in the judgments, one might think the families had been let down by various acts and/or omissions by the state over the years, but it remains to be seen how the Supreme Court will respond to this challenge.
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