Court has no jurisdiction to set aside validly made adoption order, other than by way of an appeal, judges rule

Courts have no power to rescind adoption orders on welfare grounds as Parliament intended such orders to be final, the Court of Appeal has ruled.

Family President Sir Andrew McFarlane, Lord Justice Peter Jackson and Lord Justice Phillips said in their judgment that they recognised this outcome would disappoint the lay parties involved.

The case concerned teenagers X and Y, who were adopted by AM in 2012. The court heard they did not settle well into the adoption and contact with their birth mother BM continued to the extent they “never fully left their birth family”.

The Court of Appeal judges explained: “The single question of law at the centre of this appeal is whether the court has any jurisdiction to set aside a validly made order for the adoption of a child, other than by way of an appeal.”

They said X and Y, AM and natural mother BM had experienced adoption breakdown such that it was said to be in the interests of the children for the adoption order to be set aside.

But they said the unique attribute of an adoption order was that it is made for life and can only be extinguished by a subsequent adoption order.

“If the court does have jurisdiction to set aside a validly made adoption order where, subsequently, it is held to be in the child’s best interests to do so, then the ability to achieve permanence, security and stability for all adopted children may be compromised,” they said.

AM applied to revoke the adoption order, supported by X and Y and BM. In the Family Court, Lieven J held that the court lacked jurisdiction to set aside an adoption order solely on grounds relating to the adopted child’s welfare.

Lieven J was not satisfied that the court had the power to revoke an adoption order on the sole basis of the adopted person’s welfare, but had accepted a power to revoke or set aside an adoption order existed under the inherent jurisdiction, but only in very narrow circumstances that did not apply in this case.

The Court of Appeal invited the Secretary of State for Education to intervene as there would otherwise have been no opposing voice heard and the judges felt important policy issues were raised.

The judges said: “Central to AM’s case is the ‘necessity’ for the court to correct the legal fiction which is said to exist where the de facto parent of these two young people is, once again, their birth mother.”

They said that since 2013 there had been a small number of decisions in the High Court where an application to set aside an adoption order was granted on solely welfare grounds and they examined each in detail.

As a result they found a misunderstanding had arisen that there is an inherent jurisdiction in the High Court to set aside an adoption order.

They said that in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] All ER (D) 103 (Jun), [2013] 2 FLR 1075; “there is no support…for the proposition that adoption orders can be set aside on welfare grounds.

“On the contrary, the development of the law in that direction has been at odds with the insistence in Re B on the inviolability of regularly made adoption orders as being the ultimate imperative.”

They said two cases in which adoption orders were set aside for welfare reasons (Re PK and AX v BX) “were wrongly decided, albeit from the best of motives…the fact that an adoption has turned out badly and that revocation would serve the interests of the adopted person, whether a child or an adult, is not a reason for the court to supply a remedy that Parliament has chosen not to provide”.

The judges said: “The conclusion that we have reached on consideration of the previously decided cases, which holds firmly that there is no jurisdiction at first instance to set aside a validly made adoption order, is on all fours with the summary of the underlying policy considerations put forward by the Secretary of State, which we accept.”

They explained: “These are matters of fundamental principle with respect to adoption. Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter.

“That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the Secretary of State that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.”

They admitted their decision would be “profoundly unwelcome to each of the lay parties in this appeal, but “both the law, as passed by Parliament and as previously interpreted by this court, and the policy underlying the statutory adoption regime have inevitably led us to hold as we have done.

“For the reasons that we have given, the appeal must be dismissed. Rather than holding, as all parties submitted was the case, that Lieven J’s interpretation of the extent of any inherent jurisdiction to revoke an adoption order was too narrow, we have concluded that the reality is that no such jurisdiction exists.”

Mark Smulian