It’s well known that adoption orders made in England and Wales cannot be ‘unmade’. That is partly why they are sometimes described as extreme, draconian or ‘the last resort’ if made against birth parents’ wishes. We have written about this, and the very few exceptions, here and here.
A new judgment from Mrs Justice Theis has just been published, AX v BX & Ors (Revocation of Adoption Order) (Rev 1)  EWHC 1121 (Fam), in which she does set aside adoption orders, and she helpfully reiterates the principles. She describes this application as one to ‘revoke’ the orders but I tend to use the term ‘set aside’ to distinguish this type of application from one to revoke placement orders. A problem is that there is no legislation to define this type of application – it has to be made under the inherent jurisdiction (or possibly as a very late appeal out of time). In the Adoption and Children Act 2002, an application to ‘unmake’ a placement order is clearly to ‘revoke’ and an application to ‘stop’ an adoption order being made is clearly to ‘oppose’, even though the grounds are similar.
The important thing to note about this new case is that the adoptees are aged 16 and 18 and were adopted ten years ago. So a very different situation from one where it is likely to be in a young child’s welfare to stay in a settled adoptive home.
Background to this case
A and B were adopted in 2011, when they were aged eight and six respectively, by Mr and Mrs X. The adoption broke down in 2018 and A has subsequently been living with her birth mother and half siblings and B with another birth relative. At the stage of this application, everyone supported the adoption being set aside.
Evidence was submitted about a lack of support at an early stage for the adoptive family. Support for adoptive placements at the early stage, including sensitive management of any transition from foster care, has been shown to be crucial in long term success. (This research is discussed in the recent Family Justice Council seminars). Sadly, A had been removed from a three year foster placement where she had been having contact with her mother to losing all contact with them and she gave evidence that she hadn’t wanted to be adopted. She now has a son who is part of her birth family and the fact that all official documentation records her as the child of Mr and Mrs X cause her great distress. Mr and Mrs X were greatly upset by the breakdown but are now also distressed if and when contacted by agencies as A and B’s parents.
Theis J emphasised that although these unusual facts and the highly exceptional circumstances led her to the conclusion that the orders should be set aside, the legal principles were essential to that decision and she restated these at para 80.
At para 80:
(1) An adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent.
(2) Once made the effect of an adoption order is to extinguish any parental responsibility of the natural parents and any continuing legal relationship between the natural parent and the child. By virtue of s 67 ACA 2002 the child is treated in law as if born as the child of the adoptive parent(s).
(3) The only statutory ground for revocation is provided by s 55 ACA 2002 when, pursuant to s 1(7) ACA 2002, the court’s paramount consideration is child’s welfare throughout his life.
(4) There are strong public policy reasons for not permitting the revocation of adoption orders once made based on (i) the intended permanent and lifelong nature of such orders; (ii) the damage to the lifelong commitment of adopters if there was a possibility of challenge to the validity of the order, and (iii) the impact on the availability of prospective adopters if they thought the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made.
(5) There is jurisdiction to revoke an adoption order under the inherent jurisdiction of the High Court. Any discretion is severely curtailed where an adoption order has been lawfully and properly made and can only be exercised ‘in highly exceptional and very particular circumstances’ (per Webster )
(6) Although each case will turn on its own facts, the highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to matters such as a fundamental breach of natural justice.
(7) Welfare can, in appropriate cases, be taken into account in deciding whether to exercise the court’s discretion where the highly exceptional and particular circumstances of the case justify it (see Re M, Re B, Re PK and Re O). The extent to which it can, or should be taken into account will vary, depending on the circumstances of the particular case.
Applying these principles, the judge concluded that the only factor weighing against the application were public policy considerations; although important, these have to be balanced with the other considerations. Even bearing in mind the important public policy considerations, in these highly exceptional and very particular circumstances. the balancing exercise came down firmly in favour of the orders being set aside.
The age of these adoptees is one of the relevant factors. There are some interesting points raised about the use of the inherent jurisdiction to protect someone who has already reached the age of 18, but to have arrived at different outcomes for A and B would have been wrong. It is interesting that Theis J identifies section 1(5) of the Adoption and Children Act 2002 (the child’s welfare is paramount) as the single statutory basis for an application that was clearly never envisaged in that Act.
As Polly Morgan has written (Polly Morgan (2020) ZH v HS & Ors (Application to Revoke Adoption Order): three groups of revocation cases, Journal of Social Welfare and Family Law, 42:2, 246-248, DOI: 10.1080/09649069.2020.1751935), it is possible to try to categorise attempts to set aside an adoption into three types:
- procedural irregularities that have led to a breach of natural justice (may succeed);
- where the adoption was ill-starred; and
- where there was a mistake in the court finding the threshold criteria in the care case had been reached (as in Webster).
The case of A and B would come within the ill-starred category. However as Polly wrote, such applications are normally:
…doomed to failure. In Re B (Adoption: Jurisdiction to Set Aside)  Fam 239 the child, as an adult, sought to appeal his adoption by an Orthodox Jewish couple on the basis of mistake of fact, after discovering his Muslim Arab heritage. The Court of Appeal held that
To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would … undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child.
The same reasoning has been applied in several subsequent cases, such as Re PW  1 FLR 96, an unsuccessful application 51 years out of time made on the basis that adoption had had a devastating effect on the applicant adoptee; and Re W (A Child) (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order)  EWHC 1957 (Fam), an unsuccessful application based on psychological benefit to the child in circumstances in which she had been rejected by her adoptive parents. The outlier is PK v Mr and Mrs K  EWHC 2316 (Fam), which also involved an application based on the benefit to the child, but which was successful in ‘highly exceptional and very particular circumstances’ including adopter abandonment and birth family reunification.
The outlier of PK appears to have been joined by a second ‘exceptional’ case, for A and B.
Image: Thanks to Nick Youngson, the Blue Diamond Gallery, under Creative Commons licence
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