Supreme Court hands down landmark ruling on jurisdiction to revoke adoption orders

The appeal arose from an application to revoke an adoption order in respect of two children, X and Y.

The application was made by their adoptive mother, AM, and supported by both children and their birth mother, BM.

X and Y had been placed for adoption with AM in August 2012. They were then five and four years old respectively. They had previously spent a prolonged period in foster care during which they had significant contact with their birth mother, BM.

The children did not settle well. They asked for continuing contact with BM. AM agreed that the children should spend time with BM and the extended birth family.

In 2017-19, X expressed a wish to live with BM whilst Y wanted to remain with AM. In 2020, during the Covid lockdown, AM allowed BM and BM’s youngest children to move in for a period to live with her in the adoptive home to help BM escape from an abusive relationship. In June 2021, the relationship between AM and BM broke down.

In August 2021, X and Y left AM’s home and moved to live with BM. At this point, both children said they wanted to live with BM. In May 2022, X, who had by then been introduced to her birth father, moved to live with him.

Several changes ensued. Since August 2021, Y remained fairly settled with BM. X changed her position; in February 2023 she wanted to live with her birth father and then in May 2023 she moved to live with BM.

In February 2023, the local authority issued care proceedings to regulate their existing placements.

In April 2023, AM made an application to revoke the adoption orders made in 2013.

At a hearing before Mrs Justice Lieven in March 2024, X and Y (then aged 17 and 16) supported the application to be ‘unadopted’ (initially X did not want to be ‘unadopted’ but after the hearing was adjourned to give her time to reflect, she supported the application).

Lieven J held that the court lacked jurisdiction to revoke an adoption order on purely welfare grounds.

The Court of Appeal, consisting of Sir Andrew McFarlane, Lord Justice Peter Jackson and Lord Justice Phillips, dismissed AM’s appeal.

It found that courts have no power to rescind adoption orders on welfare grounds as Parliament intended such orders to be final.

AM applied for permission to appeal to the Supreme Court, supported by BM, Y and in some respects X.

The case was heard on 4-5 February this year by a Supreme Court panel comprising Lord Reed, Lord Sales, Lord Stephens, Lady Simler and Lord Doherty.

Lord Stephens and Lady Simler, with whom the other judges agreed, delivered the judgment, dismissing the appeal.

They said: “AM’s case is that there is a pressing need for the court to correct the legal fiction said to exist where BM is once again the de facto mother of Y (and possibly X), but AM remains their mother for all legal purposes and Y is trapped in an identity that she has totally rejected.

“[…] In the absence of any statutory mechanism by which to revoke the legally valid adoption orders made in this case, AM’s appeal depends entirely on her argument that the court has an inherent parens patriae jurisdiction to revoke a legally valid adoption order in exceptional circumstances of pressing need.”

The Supreme Court judges first observed that since X and Y are no longer children, the parens patriae jurisdiction, “(if it has any application here)”, could not be applied in the case.

They said: “Nonetheless, even if academic in this case because no order under the inherent jurisdiction could be made in favour of X and Y as they are no longer children, we consider it appropriate to hear and determine the appeal. There is good reason in the public interest for doing so in the circumstances given the likelihood that there will be other cases like this one and resolution of the question raised does not depend on the facts of this case.”

Considering the nature of the jurisdiction and the context in which it was sought to be invoked, Lord Stephens and Lady Simler said: “Where a matter is regulated by statute, use of the inherent jurisdiction is limited not only when the statute expressly says so, but by implication by the very existence of the statute itself. The inherent jurisdiction cannot be used to circumvent the legislation, either by achieving the same aim by a different procedural route, or by achieving different aims which are incompatible with the statutory scheme.”

The judges observed that the court’s parens patriae jurisdiction to make orders in respect of children who have suffered or who are at risk of suffering significant harm has been “heavily curtailed” as a result of the passing of the Children Act 1989.

“It follows that to the extent that the protective parens patriae jurisdiction survives in relation to children as a residual prerogative power, it does so in cases where the court is required to perform the Crown’s residual function of protecting those who stand in need of protection from significant harm because no other statutory mechanism is available or adequate to achieve this purpose.”

The judges continued: “On this basis the parens patriae powers continue to be exercised to prevent the abduction of children from this jurisdiction or to order their return to another jurisdiction. […] Another well-established context in which parens patriae powers continue to be exercised is to regulate medical treatment decisions in relation to very ill children at or towards the end of life or in need of life-saving treatment.

“Against that understanding of the parens patriae powers, it is clear that there are fundamental problems with the argument advanced by AM that the inherent jurisdiction must be available to protect the interests of the child where necessary in this particular context.”

Firstly, the judges noted that prerogative parens patriae powers have never been concerned with reordering parental responsibility by extinguishing or transferring parental responsibility.

Lord Stephens and Lady Simler said: “The institution of wardship provides a strong illustration of this position. Parens patriae powers were used historically to protect orphans (and, more recently, other children with exceptional safeguarding needs) by the creation of wardship and orders by which the child was made a ward of court.

“Wardship vests parental responsibility for the child in the court so that significant decisions about the child (relating for example to medical treatment, protecting abducted children, returning children to or from another state) cannot be made without the court’s approval but leaves the local authority or parent of the child with pre-existing parental responsibility for the child so that day to day care and oversight of the child remains with them. A wardship order does not (and cannot) reorder parental responsibility by extinguishing or transferring to “new” parents the existing parental responsibility for the child.”

They continued: “Until the enactment of the Adoption of Children Act 1926, there was no power in the court that could be exercised to reorder parental responsibility by extinguishing it in the natural parent and transferring it to the adoptive parent. Thus, until the 1926 Act, no matter how pressing a child’s need to have their parentage transferred away from their natural parents, there was simply no power to sever the legal and family life bond created by the birth of a child with their natural parents. The existence and ambit of prerogative powers are identified according to the historical approach explained by Lord Reid in Burmah Oil.

“There is no precedent in history for a prerogative power to change the parental relationship in the manner contended for by AM, BM and Y, so the conclusion must be that no such power existed. If the power to reorder parental responsibility has never existed, there is no basis on which this residual jurisdiction can be said to have been preserved.”

Secondly, the judges observed that where parens patriae powers remain available - through wardship and in other residual contexts - it is to secure a child’s protection and safety from harm where this is necessary.

The judges said: “Accordingly, parens patriae powers only provide a source of jurisdiction (in cases involving children) where necessary to protect the child because no other statutory mechanism is adequate to achieve this purpose. Both points mean that this jurisdiction is not available in this context. At best AM’s case seems to be that Y (and possibly X) needs to be protected from Parliament’s failure to provide a statutory means for revoking the adoption orders made in their cases. This is not a proper basis on which to exercise this protective jurisdiction.”

Thirdly, the judges noted that parens patriae powers are only available for a case “not adequately covered by statute”.

They said: “Even if, contrary to the position we have explained above, the parens patriae powers ever extended as far as AM, BM and Y contend, the Adoption and Children Act 2002 (ACA 2002) has occupied the ground in this context.

“Any claimed power under the inherent jurisdiction to revoke a valid adoption order would have the effect of circumventing the detailed and comprehensive statutory scheme in the ACA 2002 governing adoption and the singularly permanent effect of such an order. The exercise of the parens patriae powers to circumvent the statutory scheme would mean that the court would be exercising a residual general power, entirely outside any statutory scheme, to revoke an order that has been lawfully made and which the statutory scheme put in place by Parliament intends to be permanent and irrevocable (save only in the case of legitimation). This would be an impermissible attempt to side-step the clear scheme of the ACA 2002.”

While this was sufficient to dispose of the appeal, the Supreme Court observed that theoretical use of the inherent jurisdiction to revoke a valid adoption order as a safety net to protect children in exceptional circumstances would also cut across the statutory scheme in the ACA 2002.

Lord Stephens and Lady Simler said: “The central tenets of the ACA 2002 are that: (a) the making of an adoption order is definitive and final; (b) it is irrevocable except under the legitimation exception; (c) it has a transformative effect which treats the child as if born to the adopter; (d) the transformative effect persists on a lifetime basis unless the order is revoked under the legitimation exception or unless the child is re-adopted under section 46(5); if the child is re-adopted then again, the further adoption order has a transformative effect so as to treat the child as if born to the new adopter; and (e) the purpose of an adoption order is to effect a permanent transfer of parental status, regardless of subsequent events.”

The judges continued: “Even if there were a parens patriae power as contended for by AM, the ACA 2002 has covered the ground. Such a power would impermissibly have cut across the statutory scheme in the ACA 2002 and would accordingly have been excluded.”

The Supreme Court judges concluded that they could not “envisage any situation that could begin to compel the revocation of an adoption order to comply with the United Kingdom’s Convention obligations”.

“Finally, and in any event, there is no inherent parens patriae (or other) power to revoke a valid adoption order.”

Lottie Winson