Three years ago, I wrote a blog post, ‘Can an adoption order be undone?’ The answer was, only in very exceptional circumstances. A new High Court judgment, published last week, ZH v HS & others [2019] EWHC 2190, has not broken any new ground, but gives us a further example of the sort of procedural flaws that are so serious they undermine the granting of the order.

Note that, this is not a situation where someone wants to revoke a placement order or object to an adoption being made – where they will have to prove a significant change in circumstances and that it’s in the child’s welfare for this new decision to be made. Nor is it a situation where someone is objecting to the judge’s reasoning and taking the case to appeal. ZH is a case where an adoption order has been made, the time for appeal has expired, but an application is made under the High Court’s inherent jurisdiction to set the adoption aside.

In ZH, a child referred to as T was adopted by her maternal aunt and uncle in October 2016 when she was about a year old. Two years later, T’s mother, ZH, was able to enter the UK and she then applied to set the adoption aside. By the date of the 2019 hearing, before Mrs Justice Theis, all parties had agreed to set the adoption aside and that T should be cared for by her mother, who would have full parental responsibility restored.

Theis J said [at para 11] that the adoption order ‘was made following a flawed process, replete with errors and omissions’.

What had happened was that ZH had attempted to enter the UK from Somalia, to claim asylum, with T, but was separated from her and she was taken to his aunt and uncle, who later approached a social worker to ask about regularising the arrangement for her to live with them. They received no legal advice but went to a CAB and somehow they got caught up in completing the paperwork for an adoption application. ZH was referred to as ‘missing’ because her family didn’t know where she was. Matters progressed without the aunt and uncle having an interpreter.

Theis J lists the procedural flaws, including:

  1. No one had noticed that T had not lived with the ‘adopters’ for the statutory period required
  2. The correct notice had not been given to the local authority
  3. The required checks on the aunt and uncle were not carried out
  4. The required medical assessments had not been undertaken
  5. The parents had not been notified, nor their consent sought
  6. The local authority’s report to court had several omissions and had not been written with the ‘adopters’ understanding that they were taking on full paretnal responsibility for T.
  7. The court didn’t appoint a Cafcass guardian.

It is almost impossible to understand how such a flawed application could have proceeded through the local authority and court processes. Unsurprisingly, Theis J concluded that:
The errors outlined above taint the entire process and I am satisfied the adoption order was not lawfully or properly made and should be revoked.

The circumstances in this case are not only ‘exceptional’ but verging on incredible. Although it may have the benefit of leading to improvements in practice, it has not made it any easier to undo an adoption order.

UPDATE: 20 August 2019. Another judgment by Theis J about undoing an adoption has just been published on BAILII, A Local Authority v X & others. It’s a very short and unusual judgment about a 17-year-old who is in contact with his birth mother and wanted his own adoption order to be set aside. The birth mother, Ms Y, who was represented pro bono (for free) by a solicitor said that she did not feel it mattered to her relationship with Z whether the adoption was set aside or not. By the date of the hearing, everyone had agreed that a care order was sufficient to meet Z’s welfare needs and his wishes. The local authority would then be able to manage and support contact arrangements as these developed. The judge praised the efforts made by the local authority, the adult parties and the lawyers who represented them, in being able to come to this agreement and, especially, to have kept Z fully and promptly informed. The law about setting aside an adoption therefore didn’t have to be considered, but it is noteworthy that a care order was required to ensure that ultimately, decisions about Z would be made by the LA, not his parents. The judgment records that this is what Z wants.

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