In this case, Pauffley J had to decide whether to revoke an adoption order that was made in 2004. That is a very unusual application to hear, and still more unusual to grant. The only successful applications I’m aware of before this were ones where the adoption order was made before an appeal could be heard and thus the revocation was just to restore the ‘status quo’ so that the appeal could be heard.
The major reported case was the one involving the Webster family, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C. The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.
The other notable case involved the young man who had been adopted by a Jewish couple and brought up as a Jew but who learned in later life that his father had been a Kuwaiti muslim and his mother a Catholic – the adoption meant that he felt he was unwelcome and misplaced in both sets of communities – he could not live in Israel because of his ethnicity, and was unable to settle in Kuwait because he was officially Jewish. That case also refused to revoke the adoption order – rather controversially. Re B (Adoption: Jurisdiction to Set Aside)  Fam 239
Thus, you can see that such an application faces a considerable uphill task, when you look at those two cases (where an ordinary member of the public thinking about the facts would have almost certainly revoked both of the orders)
- The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order)  2 FLR 1609.
- I could not improve upon Bodey J’s analysis. He observed it was common ground that “the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances.” Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – “To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order.”
- Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – “Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”
[There is one reported case called Re M 1991, where the Court did use the inherent jurisdiction to revoke the adoption order, but there’s no link to it, and it is not one that I know at all. The only links to it are via paysites, but here is a summary I have found of it, via Jonathan Herring in New Law Journal http://www.newlawjournal.co.uk/nlj/content/family-revoking-adoptions
Wall LJ gave as an example of an exceptional case where an adoption order had been set aside as Re M (Minors) (Adoption)  1 FLR 458 where two girls had been adopted by their mother and stepfather. The father had consented to the adoption but had not been aware that the mother was suffering from terminal cancer at the time. The wife died soon after, but the stepfather struggled to care for the girls and they returned to their father. The Court of Appeal was willing to set aside the consent order. The primary reason was that the father had consented on the basis of a mistake and that the father would not have consented had he known the truth about his wife’s medical condition.
[And a step-parent adoption is a rather different kettle of fish, and the father in that case had consented, but it was a classic issue of him not having been given the accurate state of affairs at the time of that consent]
PK v Mr and Mrs K 2015
In 2004, PK had been removed from her mother, and placed with adopters, Mr and Mrs K. However, within 2 years, Mr and Mrs K had placed PK with relatives in Ghana, who went on to considerably mistreat PK.
- On any view, PK’s childhood has been troubled and disrupted. It might have been thought that when, aged almost four, she became an adopted child her future was assured. Almost certainly, the expectation of the judge who made the adoption order was that PK would enjoy stability, consistency and security as the adopted child of Mr and Mrs K. No professional involved with PK at the time she was adopted could have envisaged that within two years she would be cast out from the home of Mr and Mrs K and sent to live with extended family members in Ghana.
- Nor could there have been any indication that whilst in Ghana, PK would be abused by the adults with whom she had been sent to live. Her experience of adoption, particularly the arrangements made for her after the age of six, would seem to have been extremely abusive. She is desperate to draw a line under that part of her life.
- When, last year, PK returned to England, she was reunited with her biological mother and maternal grandmother. She is delighted to be back with them.
So, should the adoption order be revoked? There seem to be many positive reasons why it should be. The child has no relationship at all with the adopters, who have (let’s be frank) badly let her down, and is now with her biological family. But as a matter of law, it is the adopters who have any legal rights about her and not her biological family. Her biological mother is no longer her mother in law.
- PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.
- PK very much wishes to once more assume the last name of her biological mother to reflect that she is her child and belongs to that family. She urges me to permit her to change her name enabling her to apply for an amended birth certificate and a passport showing that her name is the same as that of her natural mother.
- PK remains frightened and wary of Mr and Mrs K. She does not wish them to know precisely where she is living.
- There is no potential difficulty, as there was in Re W, Bodey J’s case, arising out of the need to notify PK’s natural parents or for that matter her adoptive parents. In this instance, all of those adults who should be aware of the application have been served. There is no prospective trouble. Mr and Mrs K, by their inaction, have signified their lack of interest in PK’s future. It is probably fair to assume their position is one of tacit acceptance.
- PK’s mother and grandmother are thrilled to have her restored within their family. They are committed to providing for her long term future; and fully support her applications.
- If I were to decline to revoke the adoption order and refuse to allow PK to change her name back to that of her natural mother, it seems to me that there would be profound disadvantages in terms of her welfare needs. PK would continue to be, in law, the child of Mr and Mrs K. They would have parental responsibility and the legal rights to make decisions about and for her. But there would be considerable, maybe even insuperable, obstacles in the way of them exercising parental responsibility for PK given that they play no part in her life and she wishes to have nothing to do with them.
- Moreover, against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.
The only counter argument was the “public policy” argument that an adoption order is one that ought to be final and secure and that in revoking orders that principle is undermined and weakened.
Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made Adoption orders and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of “highly exceptional and very particular” such that I can exercise my discretion to make the revocation order sought.
- The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
- I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.
Absolutely the right decision. [I would also have set aside the adoption order in Re B. And I would have lost sleep over Webster, but ultimately I think that the passage of time since the orders were made and that the children had made new homes and new lives probably tipped the balance]
I don’t think that this is an ‘open the floodgates’ type of case (though as Jack of Kent points out, the whole point and value of floodgates is that they can open, so it isn’t a bad thing), because the features are just so extraordinary and that informs the entire decision.
Hmm – ‘opening floodgates’ like a ‘raft of (say) changes to the rules’ means the opposite of what most people think: a ‘raft’ is generally very small (and should imply a small number); and, as you/JofK say: ‘floodgates’ must be able to open, but then close immediately the need for their openning has passed.
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See also the discussion of the public policy considerations as to reduction or revocation of an adoption order in the strange case of Cameron v Gibson, http://www.bailii.org/scot/cases/ScotCS/2003/298.html and on appeal http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_83.html , where the consent of the child to be adopted had apparently been forged and the order ultimately struck down (fifty-four years after it was made) was ultra vires as it had been made on the child’s twenty-first birthday.
Dear Jonathan, thank you very much for those. I will take a look, as I had not been aware of them.
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“public policy” is an ass. The law on this is an ass. I would also like to know why she was ever removed from her birth family if she is clearly in the best place being back with them. This is a classic example of the wrongness of the system.
I can’t be SURE, but my reading of this case is that the adoption order was not made as a result of care proceedings, which suggests that it was a private arrangement between the mother and the people who adopted the child.
That’s for three reasons :-
1. The Judge explains that an adoption order was made in 2004, but doesn’t set out that a Care Order or Placement Order (or Freeing Order) was made.
2. There’s absolutely no mention of risk or harm to the child in mother’s care, or anything talking about a change in her circumstances.
3. The Local Authority were not a party to these proceedings, and there’s not a single mention of social workers within the judgment.
The judgment is very thin on why the child had been adopted in the first place, but if I were putting money on it, it would be that there were not care proceedings where social workers removed this child.