Revocation of adoption orders

Joanna Moody considers whether, and if so in what circumstances, an adoption order can ever be revoked.

"The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties.” [1]

Statute

Section 46(2) of the Adoption and Children Act states that the making of an adoption order operates to extinguish the parental responsibility which any party, other than the adopter, has for the child immediately prior to making the order

Section 67(1) of the Adoption and Children Act 2002 states that the effect of an adoption order is that the adopted child will be treated in law as if they were born to the adoptive parent. Any rights that the birth parent has are thus extinguished upon the making of an adoption order, including any Article 8 ‘family life’ human rights (Seddon v Oldham MBC [2015] EWHC 2609 (Fam)) 

Under statute law there is only one limited ground for a revocation of an adoption order. This is found in section 55 of the Adoption and Children Act:

(1) Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of, or formation of a civil partnership by, the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order."

Caselaw

The Court of Appeal stated in Re B [2]1995 that adoption orders are not “immune from challenge.” They can be appealed against in the same way that other orders can be appealed against, and can be appealed against where there has been a “breach of natural justice”. Examples of this are where a party who has a right to be heard has not been notified of the hearing, or where a party has for some other reason not been heard. In these circumstances the court “has the jurisdiction to set aside the order and so make good the failure of natural justice.”

The writer and other members of the Deans Court family team were involved in the Court of Appeal decision of Re I-A (Children) (Revocation of Adoption Order)[2021] EWCA Civ 1222. In that case the Court of Appeal determined that the first instance judge had erred in law in excusing the mother’s attendance at the final adoption hearing, and instead had made the adoption order without a hearing. However, whilst acknowledging that there had been a procedural irregularity “which must not be repeated”, the Court of Appeal held that the procedural irregularity was not such as to justify the adoption order being revoked. It did not amount to a “fundamental breach of natural justice”. The reason for this was that the mother’s application for leave to oppose the adoption order had previously been refused and therefore it was inevitable that the adoption order would be made. 

The power of the High Court to revoke an adoption order under its inherent jurisdiction has been considered by the Court of Appeal and also in a number of High Court decisions. The scope of this article will not permit an analysis of each of them. However the principles to be applied were helpfully summarised by Macdonald J in HX v A Local Authority and others (Application to Revoke Adoption Order) 2020 EWHC 1287 (Fam) at paragraph 38:

“i) An adoption order effects a change that is, and is intended to be legally permanent. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child.

ii) There are strong public policy reasons for not permitting the revocation of adoption orders once made, grounded in the nature and intended effect of an adoption order but also in the grave damage that would be done to the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order and in the dramatic adverse effect on the number of prospective adopters available if prospective adopters thought that the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made.

iii) Within this context, the courts discretion under the inherent jurisdiction to revoke a lawfully made adoption order is severely curtailed and can only be exercised in highly exceptional and very particular circumstances.

iv) Those highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to a fundamental breach of natural justice."

Therefore, even a serious injustice will not be sufficient to justify the revocation of an adoption order. This is illustrated by the Court of Appeal’s decision in Re Webster v Norfolk County Council [2009] 2 All ER 1156. The circumstances of that case were that the birth parents had been found to have caused fracture injuries to their child B and at a subsequent welfare hearing the parents’ three children were permanently removed from their care and adopted. Subsequent and “powerful medical opinion” was that B’s injuries were more likely due to iron deficiency/ scurvy than to abuse. However, the Court of Appeal stated that the public policy considerations relating to adoption and binding authorities made it impossible for it to set aside the adoption orders. Once adoption orders have been lawfully made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside. 

In the most recent High Court decision [3] on the issue of revocation of adoption orders Lieven J observes that a number of first instance High Court decisions appeared to have extended the grounds for revoking adoption orders beyond those amounting to “a fundamental breach of natural justice”, and to include those that involve welfare considerations. For example in PK v Mr K [2015] EWHC 2316 Fam, Pauffley J revoked an adoption order in circumstances where the child had been physically assaulted by their adoptive parents. In AX and BX v SX and others [2021] EWHC 1121 Theis J revoked an adoption order in circumstances where the adoption had broken down and the children had returned to their birth parents, there being evidence of an adverse impact if the application was not granted. 

The case before Lieven J concerned two sisters who were adopted but who had continued to spend time with their birth mother and extended family. This arose as a consequence of the girls struggling to settle into their adoptive placement and following Therapeutic Lifestory Work. Ultimately one of the sisters chose to remain with her birth mother, the other sister being more ambivalent about this. The application to revoke the adoption orders was unusually made by the adoptive mother. Lieven J determined that she did not have the power to revoke the adoption order on welfare grounds for the following reasons:

1. The statutory power to revoke adoption orders is limited to those concerning legitimation. 
2. The Court of Appeal has determined that whilst there is a power under the High Court’s inherent jurisdiction to revoke adoption orders, this is limited to cases where there has been a “fundamental procedural irregularity.” 
3. The current case does not involve a procedural irregularity but rather a change of circumstances, namely the breakdown of an adoption. The application is therefore solely based on welfare grounds and falls outside the scope of the binding Court of Appeal authorities. 
4. The inherent jurisdiction of the High Court cannot be used where there is a statutory scheme which covers the same ground.
5. Whilst there are High Court authorities where an adoption order has been revoked on welfare grounds, in those cases the court was not referred to the caselaw on the limitations to the use of the inherent jurisdiction (namely the judgment of Sir James Munby in FS v AM [2020] EWHC 68.) 

Lieven J noted that there may be arguments for adoption orders to be revoked on welfare grounds in very particular circumstances, but that would be a matter for Parliament to address and not for the courts to determine. 

Conclusion

In the event that the Court of Appeal addresses those issues raised by Lieven J in the foreseeable future, then I will provide an update in our Spring Newsletter. There is, in my opinion, a need for further guidance and clarity from the Court of Appeal as to the limited circumstances in which an adoption order can be revoked. This would be of benefit to all three of the parties mentioned at the outset of this Article; the natural parents, the adoptive parents, and the subject child who ceases in law to be the child of the natural parents and becomes the child of the adoptive parent(s). [4]

Joanna Moody is a barrister at Deans Court Chambers.

[1] Per Lord Bingham MR in Re B (Adoption: Jurisdiction to set aside) 1995 2 FLR 1

[2] Ibid

[3] Re X and Y (Revocation of Adoption Orders) [2024] EWHC 1059

[4] Re B [1995] per Lord Bingham MR