Revocation of adoption orders

The Court of Appeal recently heard an appeal against an order dismissing an application by the birth mother of three children to revoke an adoption order made in respect of those children. Fran Massarella looks at the outcome.

In I-A (Revocation of Adoption Order) [2021] EWCA Civ 1222 the two eldest children were born in October 2016 and February 2018. In May 2018, proceedings began in respect of these two children following a discovery that the younger child had sustained a series of fractures. The children were subsequently removed from the parents’ care under interim care orders and placed in foster care. In April 2019 the mother gave birth to her third child who was also placed in foster care under an interim care order.

In June 2019, following findings of fact that the injuries had been inflicted by one of the parents, all three children were made the subject of final care and placement orders. In September 2019, permission to appeal against the making of the orders was refused and in October 2019 an adoption application was filed in respect of the youngest child, followed by the same for the eldest two children in January 2020. The parents sought leave to oppose all three adoptions, but their applications were dismissed. The adoption application was listed for hearing in April 2020 and the mother’s application for an adjournment of the final hearing to allow more time to investigate options of family placements abroad was refused.

The April 2020 adoption application hearing was initially scheduled to take place remotely by telephone due to the COVID-19 pandemic; however, the Court subsequently excused all parties from attending the hearing and dealt with the application on the papers. On 6 April 2020, the Court made an order that it was satisfied that the children’s welfare needs should be paramount and that there was no realistic alternative to adoption that would meet their needs and that nothing else would do. Therefore, the adoption orders were made.

In July 2020, the mother applied under the inherent jurisdiction for the revocation of the care and placement orders made in June 2019 and/or the adoption orders made in April 2020. A number of grounds were relied upon under the general heading of serious procedural irregularity and unfairness, including that the adoption order was arguably made in breach of the principle of the right to a fair hearing and the applicable coronavirus guidance. The mother argued that the circuit judge did not give a good or sufficient reason for refusing the adjournment request and for holding that there was no realistic alternative to adoption. The judge dismissed the mother’s application to revoke the care and placement orders and the adoption orders.

The mother was granted permission to appeal that decision in January 2021 on two grounds, namely that the judge had misdirected himself and/or erred in law in determining that that:

1. Family Procedure Rule 14.16 provided a “knock out blow” to the mother’s application; and,
2. The judge was entitled to excuse her attendance at the final adoption hearing.

At [11], the Court summarised the relevant law, citing s.46(6) Adoption and Children Act 2002, which states that before making an adoption order, the Court must consider whether there should be any arrangements for allowing any person contact with the child and therefore must consider any existing arrangements and obtain the views of the parties to the proceedings. S.141 of the 2002 Act was also cited, which provides that in the case of an application for an adoption order, the procedure rules must require any person who would be related to the child by blood to be notified of the date and place where the application will be heard and of the fact that unless the person wishes or the Court requires, the person need not attend. Paragraph 10 of the President’s Guidance: Listing Final Hearings in Adoption Cases 2018 was also quoted. The guidance states that the requirement to give notice of the final hearing is mandatory and any person given notice has the right to attend and be heard on the question of whether an adoption order should be made.

At [15], the Court referred to HX v A Local Authority and others (Application to Revoke Adoption Order) [2020] EWHC 1287 (Fam), where it was held that the Court’s discretion under the inherent jurisdiction to revoke a lawfully made adoption is ‘severely curtailed and can only be exercised in highly exceptional and very particular circumstances.’

On behalf of the mother, it was submitted that the adoption order had not been made in accordance with the 2002 Act or FPR 14.15 and 14.16. It was argued that the judge did not have the jurisdiction nor power to make a final adoption order on paper without a hearing. It was also contended that no reason was given by the Circuit Judge as to why the hearing could not proceed by telephone and the mother was entitled to be heard on the question of contact irrespective of the fact that she had been refused leave to oppose the making of the adoption order.

On behalf of the local authority, it was submitted that no procedural irregularity had taken place and there was no absolute right of a parent to be present at the final hearing of an adoption application. It was also argued that the Court must have a power to proceed in the absence of a parent because otherwise that parent would be able to delay or even prevent the making of an order and that the Court had powers of active case management which include dealing with the case without the parties needing to attend court. In the alternative, it was submitted that if the Judge’s actions amounted to procedural irregularity, it did not give rise to a fundamental breach of natural justice so as to lead to the revocation of the adoption order.

On behalf of the Guardian, it was submitted that given there were no further issues to be heard, the balance fell in favour of dealing with a case expeditiously and proportionately and that there were no adverse consequences of the Judge’s decision to excuse the mother’s attendance at the hearing.

At [23], it was concluded that the decision to make an adoption order without hearing in the absence of the mother was a procedural irregularity and that the mother was entitled to be present at the hearing. It was stated at [25], that ‘an adoption order must be made at a hearing, not merely by the stroke of the judge’s pen.’ However, at [26], the Court also held that the irregularity did not amount to a fundamental breach of natural justice so as to give the High Court discretion under the inherent jurisdiction to revoke the order. The rationale provided by the Court was that the mother did not have permission to oppose the adoption in any event so there was nothing she could have done to prevent the adoption going through. Furthermore, although the Court was required to consider contact arrangements, the mother was not having direct contact and had not sought permission to make an application for this.

Accordingly, the appeal was dismissed.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.