The Court of Appeal (CoA) clarified that adoption orders may generally only be set aside on appeal and that the High Court does not have the inherent power to revoke an adoption order.
Background:
AM adopted two children X and Y in 2013. They had difficulties settling in and were allowed significant contact with their birth mother, BM. In 2017-19, X expressed a wish to live with BM, whereas Y was clear that she wanted to remain with AM. During COVID-19, AM allowed BM and her youngest children to move in to escape an abusive relationship. In August 2021, X and Y left AM's home and eventually moved to live with BM. In May 2022, X, who had by then been introduced to her birth father, moved to live with him.
In February 2023, the local authority (LA) issued care proceedings. Y told the children's guardian that she wanted to stay with BM and did not want AM to continue to have parental responsibility for her. X wanted to live with her birth father while maintaining a relationship with AM. In April 2023, AM made the present application to revoke the adoption orders. In May 2023, child arrangement orders (CAOs) were made for Y to live with BM and for X to live with her birth father under Section 8 of the Children Act 1989. X's placement with her birth father subsequently broke down and she spent time living initially with BM and then AM before settling back with BM.
In April 2024, the High Court denied AM’s application due to the lack of jurisdiction to do so on welfare grounds alone.
Decision:
The CoA dismissed the appeal after a thorough analysis of the authorities and statutory provisions. The Judge noted that “the key authority remains the decision of this Court in Re B, which stated that the courts should be strict in their refusal to allow adoption orders to be challenged otherwise than by way of appeal.” RE B does not allow for an adoption order to be set aside on welfare grounds only. The Court reiterated the inherently final and transformative nature of adoption orders.
The Court recognised three situations in which a first-instance court would potentially have the power to revoke an adoption order, specifically when the appeal is impossible due to the circumstances based on G v G [2012]; second if a failure to serve a party which has been so quickly identified that the Court can correct it based on Rule 27.5 of the Family Procedure Rules 2010 or, finally, there has been an accidental error or omission.
A power to revoke an adoption order on welfare grounds would undermine the policy that adoption should be transformative, final and lifelong in effect. Sir Andrew McFarlane P noted that allowing the first-instance power to revoke an adoption order would damage the commitment of adopters to their adoptive children. In his opinion, “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.”
Lieven J’s refusal at first instance was lawful and based on the absence of a statutory basis for such revocation. The inherent jurisdiction of the High Court was deemed insufficient.
Implications:
This judgement underscores the importance of maintaining public confidence in the adoption system as well as the lifelong commitment that adoption represents. Following this decision, it is clear that an adoption order is intended to be permanent and there will be very few limited situations in which a first-instance court will have jurisdiction to revoke such an order on welfare grounds alone.
Because courts do not have a welfare-based jurisdiction, courts are not able to help adoptive relationships which have broken down.
