This is a judgment by Justice Leiven which concerns the court’s power to revoke adoption orders. The Judge considered the case law on adoption and the inherent jurisdiction of the High Court. It was held that there was a power to revoke under the inherent jurisdiction in cases where that had been a fundamental procedural irregularity. However, this did not extend to a power to revoke on welfare grounds, even where these involve exceptional circumstances.
Factual background
X and Y were previously subject to care and placement orders made in August 2010 following care proceedings. They were placed with their adoptive mother, AM, when they were five and four years old.
Both the children continuously struggled in the care of AM which led to them spending time with their biological mother, BM. In 2020, BM and her younger children moved in with AM. In 2021 both X and Y then went to live with BM when Y made allegations of physical and emotional abuse against AM. Both children expressed a wish to remain with BM and a parenting assessment was carried out by the local authority which recommended the same. In April 2023, AM applied to the court to revoke the adoption orders that were previously made. This application was supported by both children.
The law
The Judge summarised the effect of an adoption order, which is as follows:
(i) It operates to extinguish the parental responsibility held by those other than the adopters or adopter immediately before making of the order, and;
(ii) It causes the adopted child to be treated in law as if the child is born as a child of the adopter or the adopters.
The Judge then discussed the only statutory provision that relates to the revocation of an adoption order (s55 of the Adoption and Children Act 2022). This states that the only way in which an adoption order can be revoked is if there are issues of legitimation, i.e. procedural irregularity.
The Judge then considered the relevant case law to determine how the Court of Appeal had previously used its power to set aside on the grounds of procedural irregularity under its inherent jurisdiction. The Judge determined that the authorities showed that a court could only set aside an adoption order in ‘highly exceptional and very particular circumstances’, and only if there had been ‘a substantial miscarriage of justice’.
The judgment
The Judge determined that she did not have the power to revoke the adoption order on the grounds of the welfare interests of the children. The Judge made it clear that the only instance whereby the Court of Appeal has accepted a power to revoke under its inherent jurisdiction is in cases where there has been a fundamental procedural irregularity.
The Judge stated that the grounds in the current application were entirely different, in that they did not relate to the validity of the adoption orders when they were made, but were instead based on a change of circumstances and a breakdown of the adoption. The Judge felt that it would be wrong to use the inherent jurisdiction in the way being sought when the application had been made solely on welfare grounds, meaning that it fell out of the scope of any previously binding court decisions.
The Judge was mindful that the High Court had previously found a power to revoke on welfare grounds. However, the Judge was critical of these judgments in that they did not consider the limitations and restrictions to the use of inherent jurisdiction. These cases were therefore not followed.
The Judge also noted that it would have been in Y’s best interests to revoke the order. She had found the legal proceedings distressing and would likely experience problems with her sense of self in the future. In light of this, the Judge said that there were strong grounds for Parliament to create a power to revoke adoption orders in very particular circumstances. However, this was not currently the case, and the important constraints on the use of inherent jurisdiction had to prevail.
The adoption orders were not revoked and remained in place.
The full case can be viewed here:
https://www.bailii.org/ew/cases/EWHC/Fam/2024/1059.html
Elle Macdonald is a solicitor in the family department representing parents and extended family members in care proceedings and private law children proceedings. Elle is contactable on 01268 240400 and emacdonald@anthonyking.co.uk .
