High Court judge revokes adoption orders after acknowledging "exceptional circumstances"

A judge in the Family Division of the High Court has revoked adoption orders for an 18 year old (A) and a 16 year old (B) after concluding that there were “compelling highly exceptional and particular circumstances” that supported such a step.

In AX v BX & Ors (Revocation of Adoption Order) [2021] EWHC 1121 (Fam) A and B had applied under the inherent jurisdiction to revoke adoption orders relating to them granted on 4 August 2011 to SX and JX.

The other parties to the application were SX and JX, CT (A and B's natural mother) and the local authority (responsible authority at the time the adoption orders were made, 'the first local authority').

At an earlier stage in the proceedings another local authority ('the second local authority') were given notice of the proceedings. They were the local authority responsible for providing the support under the adoption support plan and the applicant in the care proceedings issued in relation to A and B in 2018, which concluded in September 2019. They provided disclosure of documents but did not seek party status.

Mrs Justice Theis said that since the autumn of 2018 both A and B had been back living with the natural maternal family. A and her son, born in 2020, live with CT and her three younger children. B had been staying with CT's aunt, although spending time with CT.

It was accepted that the placement with Mr and Mrs X had permanently broken down, neither A or B having lived with them since autumn 2018, with only A having limited contact with them since then.

Mrs Justice Theis said: “It is important for the court to recognise that behind the detailed legal submissions in this case the outcome of the application will have very significant consequences for A, B, CT and Mr and Mrs X. If granted, the order to revoke the adoption orders will change in a lifelong way the legal relationships they have with each other. It is an outcome they all support but that alone, whilst an important factor, does not determine the outcome of the case.

“It is necessary for the court to determine the issues between the parties about the legal framework within which the court should consider this application. Only then will the court be able to consider the relevant factors in the case and determine whether it should exercise the court's discretion under the inherent jurisdiction to revoke the adoption orders.”

The judge said the written and oral evidence had described how important the outcome of this application was for the people who were most directly affected.

What was clear was how the continuing legal position impacted each of their lives in a very significant way, Mrs Justice Theis added. “In her oral evidence, A very powerfully explained how her current legal status is present in so many aspects of her daily life. Everything about her is recorded with a surname, which she does not identify with as her name, it is not what she wants to be known by and does not reflect her own and her son's day to day life. A vivid example of this was when her son was born. She wished him to be known in the hospital with her natural mother's surname, that was not possible as all her relevant records are in the name of X. She described how the fact that this issue involves every aspect of her life means that she has to explain her circumstances each time, which causes her considerable distress.

“As she described, it makes her feel she is the odd one out in her family. She wants to be able to be in a position where she can say that in every aspect of her life that she is a member of the T family.”

Whilst B did not give evidence, the position A described was reflected in her written statement, she was present when A gave oral evidence and did not disagree with what was said.

Neither Ms T nor Mr and Mrs X gave oral evidence. In their statements, Mr and Mrs X conveyed from their different perspective why they did not object to the order to revoke the adoption orders being made, and how the continuing position impacted on their lives. They too had to explain their position when they were contacted, as they remained A and B's legal parents.

The background to the case was that:

• A and B’s father had taken no part in the proceedings. He is currently serving a significant prison sentence.
• In 2007 A and B were placed in foster care via section 20 Children Act 1989 (CA 1989) agreement between the local authority and Ms T. At that time A was 5 and B almost 3. The concerns centred on Ms T's inability to protect the children from harm due to her parenting difficulties.
• A and B settled in the foster placement, reportedly B more so than A. Contact with Ms T and the children was supervised twice a week. It was described as positive, although there were no rehabilitation plans.
• A parenting assessment of Ms T in December 2008 stated that she could not care for the children on her own, and the stress of doing so might risk her reverting to maladaptive ways of coping.
• Care proceedings were commenced in relation to both children in early 2009, concluding in early 2010 with the making of care and placement orders. The care plan supported the children's adoption, providing it was arranged within a short timeframe (the reports refer to six months). By then A was 8 years and B 6 years. Ms T's third child T (born in mid-2009) was part of those care proceedings, but T remained in Ms T's care. Ms T's position was she wished to care for A and B, although she did not contest the care order or the plan for A and B's adoption.
• In November 2010 A and B were matched and placed with Mr and Mrs X. The circumstances and decisions surrounding that placement were the subject of some criticism by [counsel for A and B], and Ms N [the Guardian], in her reports in these proceedings. In the documents filed on their behalf Mr and Mrs X raised issues about the lack of consistent and reliable adoption support for the placement and A and B. In the skeleton argument filed by the first local authority they relied on their compliance with the relevant procedures in the Adoption Agency Regulations 2005, however they acknowledged their evaluation of the care and placement needs of A and B 'did not sufficiently reflect the emotional and behavioural needs of the applicants' or properly address all the options such as long term fostering as a realistic option for the children. On behalf of the first local authority, counsel made the point that these decisions were taken prior to the guidance given in cases such as Re B-S [2014] 1 WLR 563.
• The documents disclosed difficulties with the placement with Mr and Mrs X from an early stage in terms of A and B's behaviour, Mr and Mrs X's response, and the difficulties in consistent and reliable support being provided, taken up and followed. The placement with Mr and Mrs X was supported by the second local authority.
• A located her natural mother on social media in 2015 and concerns were raised about B being beyond parental control. The relationship between Mr and Mrs X and A and B continued to experience difficulties. In early 2018 both A and B started having contact with Ms T, without Mr and Mrs X's knowledge.
• Following further intervention by the second local authority a meeting was arranged between Mr and Mrs X and Ms T in May 2018. This resulted in an agreement being drawn up, setting out fortnightly contact arrangements and expectations.
• In September/October 2018 relationships between A and B and Mr and Mrs X broke down completely. B moved to live with Ms T and A to a transitional residential placement for a short period, before moving in to live with Ms T. Both A and B stated they did not wish to return to Mr and Mrs X's care. Mr and Mrs X did not seek their return and agreed to them remaining in the care of Ms T, under a s 20 CA 1989 agreement.
• In November 2018 the second local authority issued care proceedings. An interim care order was made in early December 2018, with Mr and Mrs X not disputing the interim threshold criteria were met. Mr and Mrs X were parties to those proceedings, were legally represented although did not attend any of the hearings. Ms N was appointed as the Children's Guardian.
• The proceedings concluded in September 2019 with a child arrangements order for B made in favour of Ms T, supported by a family assistance order. An earlier child arrangements order had been made in relation to A, prior to her 17th birthday. Mr and Mrs X accepted this outcome and did not seek A and B being returned to their care.
• Ms N's report for the final hearing in the care proceedings first raised the issue of revocation of the adoption orders. B held stronger views than A and Ms N supported continued discussion with their solicitor about the issues such applications would raise.
• The revocation proceedings were commenced in February 2020. In her reports in August and October 2020 Ms N recommended the adoption orders should be revoked.

Mrs Justice Theis considered the relevant legal principles could be summarised as follows:

(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 [149])

(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.

The judge said the relevant considerations in this case were as follows:

(1) The order sought in this case was supported by all parties and reflected the factual reality of their respective day to day position, both in the short and long term.

(2) For A she had been living back with her natural family for over two years and shared a home with her natural mother, three younger siblings and her own child. They lived and identified as one family.

(3) For B she had been back living within her natural family for over two years. Although, not currently being cared for by Ms T, Ms T continued to exercise de facto parental responsibility in relation to B and B identified herself as a member of the natural family.

(4) Both A and B felt very strongly about their legal status, they felt very much a part of the natural family and wanted their legal status and identity to reflect that.

(5) Ms T had directly and indirectly cared and provided for both A and B over the last two years. The child arrangement orders in relation to both A and B in 2019 restored her parental responsibility in relation to both of them. Ms T identified with A and B as her children and as siblings to her three younger children. Ms T provided a home for A's child, who she regarded as her grandchild although at the moment she had no legal relationship with him.

(6) Mr and Mrs X accepted the relationship between them and A and B had permanently and irretrievably broken down. They accepted the interim threshold criteria were established in the care proceedings in 2018 and made it clear to Ms N in her recent report their position to no longer wanting to be regarded as the legal parents of A and B.

Having regard to these considerations, and in the light of the principles she had outlined, Mrs Justice Theis said she had reached the conclusion that the adoption orders made in relation to A and B should both be revoked, due to the highly exceptional and very particular circumstances of this case.

This conclusion was reached for the following reasons:

(1) Whilst the court recognises the strong public policy considerations that normally, rightly, weigh against revoking properly made adoption orders, the cases had demonstrated the inherent jurisdiction can be invoked to do that in the circumstances set out in Webster [149].

(2) The authorities made it clear that jurisdiction could only be exercised in highly exceptional and very particular circumstances.

(3) In this case there were compelling highly exceptional and particular circumstances that support revocation.

(4) Whilst at the time the adoption orders were made the hope and intention was that both A and B would have the security and stability that would come with the adoptive placement, that did not turn out to be the case. It was not envisaged at the time of the order, that within their minority they would have returned back to live with the natural family, and for that placement to be secured by legal orders that restored parental responsibility to the natural mother through orders that a court determined met their welfare needs.

(5) The relationship between Mr and Mrs X and A and B had completely broken down, that fact was agreed even if the reasons why remained in issue. They actively did not seek to exercise parental responsibility or to continue to have any remaining legal status or connection in relation to A and B.

(6) If the court did not grant the application it was likely to have an adverse impact on A and B. They would remain in a legal fiction, unrelated to their day to day reality going forward which would impact on their day to day life, both psychologically and emotionally in the short and long term.

(7) Any suggestion that A and B should be treated differently solely due to their ages was unjustified and did not readily sit with the essential characteristic of the inherent jurisdiction being a flexible remedy, albeit in this context within the confines of what was regarded as very exceptional and particular circumstances. It would create an unfair and perverse result. It was not suggested in Re B that there was no jurisdiction to seek the order applied for by the adult adopted person. In that case it was refused on the particular facts of the case, unrelated to the applicant's age. The situation in FS was a different context, there an applicant adult sought to invoke the inherent jurisdiction to compel third parties to provide money or services. Also, the situation in this case was different than the vulnerable adult line of cases, such as DL v A Local Authority [2012] EWCA Civ 253, where the inherent jurisdiction was sought to be invoked for the court to make an order to enable a vulnerable adult to maintain capacity. In this case an order was already in place, which it was sought to revoke.

(8) The Article 8 rights of A, B, Ms T and Mr and Mrs X were engaged. As had been made clear (in cases such as A v P and Re X) Article 8 rights include identity. A and B were clear their identity was inextricably linked with the natural family. It was where they were both living, intended to remain and wanted their legal status to reflect. Ms T supported that, she had resumed their care, her parental responsibility had been restored through the child arrangements orders and she wanted the legal status between them to reflect that. Mr and Mrs X had had no contact or communication with A and B for over two and a half years. They did not suggest they should seek to retain any legal status with A and B, in fact they saw positive reasons for that legal status to be extinguished. It could be said their Article 8 rights, from their perspective, supported the orders being revoked.

(9) The only factor weighing against the application were the public policy considerations, whilst not doubting their importance they had to be balanced with the other considerations.

(10) No one factor was determinative but when looked at as a whole, 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 revoked.

The consequence of the revocation was that the legal relationships between A and B and Ms T are restored to that prior to the adoption orders being made, “with all the consequences that flow from that regarding their relationship with the wider members of the T family”, Mrs Justice Theis said.

“The court hopes that now these proceedings are concluded each of the individuals most affected will now be able to move forward in the light of the orders the court has made.”