Judges allow appeal by council over adoption order after it emerged that mother was dating prisoner

In M (A Child: Adoption: Duty of Disclosure) [2026] EWCA Civ 568 (11 May 2026), Lord Justice Peter Jackson set aside the adoption order, concluding that “the failure by the prospective adopters to make full and frank disclosure of their circumstances amounted to a serious irregularity in the proceedings that rendered them unjust.”

He added however that there was “no fault on the part of the judge”.

The case concerned T, a boy aged 2.

T was placed for adoption with a married couple by Gateshead Metropolitan Borough Council (LA1) in May 2025, and in November 2025 an adoption order was made.

The adoptive parents, (AM and AF) lived in the area of LA2. They had been a couple since 2017 and were married in 2023. They were approved as prospective adoptive parents in August 2024 and were matched with T in April 2025. He was placed with them in May 2025 and in July 2025, they applied for an adoption order.

In January 2026, a visit was hosted by the judge at court to celebrate T's adoption. In attendance were T with his adoptive parents, who presented as a couple, together with the adoptive paternal grandparents and T's former social worker.

Later that month, T's former social worker received information that the adopters had separated and that AM was in a relationship with a male prisoner at a prison where she worked.

Investigations followed, during which the following picture emerged:

• AF had moved out of the home in mid-October 2025 to live with his parents.
• On the day the adoption order was made, the council tax office was informed that AF had moved out of the family home.
• The prisoner was in custody for a drug-related offence. His offending history included battery, possession of weapons, and drug offences. He had also been accused of sexual offending in respect of a child, but no further action had been taken.
• He had given AM's address as the address to which he was to be released, his release date being in March 2026.
• He had since October 2025 referred to T as his "stepson".
• AM had taken T to visit the prisoner in late November 2025, and again in February 2026.
• AM had initially denied any relationship with the prisoner, but on the following day she admitted it.
• She had further initially denied that T had had any contact with AM.
• AM had been caring for the prisoner's XL bully dog.
• AF began divorce proceedings in February 2026.

In March 2026, while the matters were being investigated, LA2 issued care proceedings in the Family Court and an interim care order was granted.

T was removed from AM and placed with AF's parents, where AF himself now also lived.

At a case management hearing before HHJ Hudson in March 2026, the proceedings were timetabled through to hearings in July and August 2026, and LA1 was permitted to intervene in them.

The same month, LA1 filed its Appellant's Notice. King LJ subsequently granted permission to appeal.

In its appeal, LA1 sought the setting aside of the adoption order on the basis that the court was misled about the true circumstances of the adopters. It submitted the following four grounds:

1. The failure of the adoptive parents to disclose any of the following information to the judge determining whether to make an adoption order amounts to a serious irregularity in the proceedings:

a. the relationship between them having come to an end, contrary to the written evidence before the Court;

b. the adoptive mother's relationship with a serving prisoner;

c. her intention or at least aspiration that the prisoner might come to live with her and the child.

2. The decision to make an adoption order was founded on a materially mistaken factual basis, which fundamentally undermined the welfare analysis required by Adoption and Children Act 2002 (ACA 2002) section 1, in particular as to:

a. the realistic options for the child;

b. the likely permanence of the placement;

c. the capacity of the adopters to provide safe and stable care;

d. the risk profile of individuals within the household and likely to care or come into contact with the child.

3. The Court's discretion to make an adoption order was exercised on an incomplete and inaccurate evidential foundation, to the extent that it could not rationally have concluded that making an adoption order was in the child's best interests had it been aware of the true circumstances.

4. The decision to make an adoption order based on a flawed welfare evaluation was unfair to the child, given the nature and consequences of the order.

Analysing the case, Peter Jackson LJ pointed to rule 14.11 of the Family Procedure Rules 2010 (FPR 2010), which requires the adoption agency or local authority to file a confidential report on the suitability of an applicant to adopt a child.

He said: “The matters to be covered in the report are specified in Annex A of PD14C. Included among these (at Section C, Part 1) are:

"(h) Where adopters wish to adopt as a couple, the status of the relationship and an assessment of the stability and permanence of their relationship."

and

"(m) Assessment of ability and suitability to bring up the child throughout his childhood."

“An assessment of the stability and durability of the prospective adopters' relationship is therefore a fundamental component of the adoption decision.”

In the present case, Peter Jackson LJ found that the adoptive parents withheld “crucial information” about the state of their own relationships from T's adoption agency (LA1), from their own adoption agency, and from the court.

He said: “The degree of responsibility that each adoptive parent and the members of their wider families may bear for this state of affairs will no doubt become more apparent in the ongoing care proceedings, and it would not be right for us to say more about that. What is entirely clear, and sufficient for the orders that we must make, is that the misinformation about the state of the adult relationships within T's new family fundamentally undermined the court's decision. The judge would certainly not have made an adoption order to joint applicants if she had had doubts about the stability of their relationship or if she had had any hint of AM's relationship with the prisoner. Had the true facts been known, she would either have dismissed the adoption application (if it was pursued) or would at least have caused further inquiries to be made.”

He continued: “As the grounds of appeal show, the situation that has arisen can be analysed in a number of ways. On appeal to this court, an appeal will be allowed where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.21(3). In my view, both of these conditions are met in this case. The fresh evidence that has been admitted on appeal shows that:

(1) On the basis of the true facts that existed at the time of the hearing, an adoption order was the wrong order;

and that

(2) The failure by the prospective adopters to make full and frank disclosure of their circumstances amounted to a serious irregularity in the proceedings that rendered them unjust (not a commonplace procedural irregularity but an 'other irregularity' of a kind envisaged by the rule).

“The consequence of each of these errors was that the court acted on a fundamentally mistaken basis. There was of course no fault on the part of the judge: on the basis of the information before her, every judge in the Family Court would have made an adoption order, while on the basis of the true facts, no judge could have done so.”

Peter Jackson LJ observed that the case underlines the need for social workers and the court to ensure the information provided to the court at the final hearing is fully up to date, particularly in cases where the Annex A report is completed some time before the hearing and when the prospective adopters' attendance at court has been excused.

He allowed the appeal, set aside the adoption order and dismissed the adoption application.

Concluding the case, he said: “T accordingly ceases to be a member of his adoptive family and reverts to being a member of his birth family. Further, as a result of the setting aside of the adoption order, AM and AF no longer have parental responsibility for T, and the care and placement orders in favour of LA1 revive. […] The placement order gives LA1 parental responsibility as an adoption agency, with the power to determine the extent to which the exercise of parental responsibility by T's birth parents is to be restricted. A further effect of the placement order is to render the care order as being of no effect while the placement order is in force.

“However, an interim care order, arising from T's current circumstances, is now independently in effect. That order gives LA2 parental responsibility, and the power to determine the extent to which the birth parents may meet their parental responsibility to him: Children Act 1989 s. 33(3).”

He added: “A situation in which two local authorities have come to possess parental responsibility for a child at the same time is most unusual, but mercifully this is an unusual case. Moreover, the local authorities have readily come to a detailed agreement that will appear as a Schedule to our order. It provides for a transitional period of some five weeks until a further hearing of the care proceedings in the Family Court, with inquiries having been made by LA1 in the meantime. During this time, LA1 will exercise parental responsibility for T, with LA2 being authorised pursuant to Children Act 1989 section 2(9) to exercise parental responsibility, limited to safeguarding and placement supervision.”

Lord Justice Warby and Lord Justice Cobb agreed.

Lottie Winson