Revoking adoption and IVF mistakes (again)

The President of the Family Division has been at the forefront of the litigation about IVF clinics that managed to make a mess of the paperwork such that people who fully intended to both be legal parents of a child conceived in that way have ended up not being legal parents and having to go through cost and emotional turmoil. Purely due to failures in using the correct forms. It is a trivial mistake, but one (as you can see from this piece) has huge emotional consequences and cost for those involved.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html

The President notes that there are approximately 90 cases of such anomalies, where due to failure with forms and paperwork parents who intended in good faith to become legal parents of the child they were conceiving with help of the clinic did not actually become the legal parent.

In this case, when the parents were told of the mistake, the child had not yet been born.

17.When told by the clinic of the mistake which had been made, X and Y were, to use X’s word, “devastated.” Y was at home – in fact she was far advanced in her pregnancy with C2 – when Barts telephoned:

“They told me that I was not [C1’s] legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1’s] mummy. This still remains very raw.”

X remembers Y telephoning:

“[She] called me, [she] was sobbing and I could barely make out what she was saying.”

The legal advice they got at the time (which was probably right at the time – or at least what most lawyers would have said was the only answer) , before Theis J found the alternative route) was that there would have to be an adoption.

18.X and Y were told both by the clinic and by the solicitors they instructed – not those involved in the present proceedings – that the only solution was for Y to adopt C1. I have referred on previous occasions to how utterly inappropriate adoption is as a remedy in cases like this: see In re A, para 71(vii), and Case I, para 24. However, as I observed in Case I, para 23, my impression is that this erroneous view, shared at the time both by the HFEA and by the clinics whose actions I have had to consider, and, I might add, by many family lawyers, was based on assumptions, derived from Cobb J’s judgment in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, which were widespread until, in February 2015, Theis J gave judgment in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13, [2016] PTSR 1.

19.Y accordingly made an application to the Family Court to adopt C1. X and Y found the adoption process – and I can well understand why – very intrusive, very hurtful and a total invasion of their privacy. Y’s account is telling: “I felt I was stared at and judged. I felt that everyone analysed us.” But more fundamentally, as X put it, “the whole adoption process felt wrong.” Y’s anguished words are heart-breaking:

“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [C1’s] mummy. I was [C1’s] mummy but now I am [C1’s] adoptive mummy. We do not want [C1] to be different to [C2] … We feel disappointed and let down by Barts. We planned our family carefully. We want [C1’s] parenthood to be what it should have been. Adoption is not what we wanted.”

X’s words are equally raw:

“It broke my heart when I had to hand in [C1’s] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been.”

20.The report of the adoption social worker prepared for the adoption proceedings contains this important passage:

“This application is quite unique.” After setting out the circumstances, the writer continued: “The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1’s] parent, as was always intended.”

21.In due course – this was all in 2014, before Theis J had given her important judgment – the District Judge made an adoption order. It was not a happy occasion for X and Y. In her report prepared for the present proceedings, C1’s guardian records their feelings:

“The description of that day was very emotional. “There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.””

Having learned of the newer approach of the Family Courts, to fix the deficiencies in the process and make declarations of parentage which would achieve the legal status as the child’s parents without adoption, the couple sought advice and made an application to revoke the adoption order.

As readers of the blog will know, that’s a very rare application, and less than a handful of such cases have ever succeeded. Most reported attempts have failed.

22.The guardian’s report is insightful, empathetic and humane. It is a powerful and moving exploration of what has gone wrong:

“[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.

… The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. “We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property.” [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X’s] consent. She described sitting in the kitchen and crying.”

23.The guardian comments that at no point in the process did anyone raise any queries about the unusual background circumstances or ask whether there might be a different route to securing parenthood for C1. She continues:

“[C1] now has a new birth certificate and a new status as an adopted child – something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them … [They] feel a level of stigma about the adoption and an acute awareness of [C1’s] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this … They are upset and angry on [C1’s] behalf – and anyone hearing their account cannot help but be moved. “We are honourable, honest people. We believed the system and we did what we were told.” They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted.”

24.Recognising that revocation of an adoption order is “a most unusual step”, the guardian is nonetheless unequivocal in her recommendations:

“However, from [C1’s] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice … On [C1’s] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage – the latter order being one that will equally meet [C1’s] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1’s] status as an adopted child and afford [C1] parity with [C2].”

The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, “enormous significance” for X, Y and C1.

25.I wholeheartedly agree with the guardian’s observations and unequivocally accept her recommendations. For all the reasons she gives, C1’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’. In the circumstances I have described, to deny them the relief they seek would seem an affront to justice. But does the law enable me to make the desired order? In my judgment, it does.

26.I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam). See also, in relation to the revocation of a parental order made under section 54 of the 2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286.

27.There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

1. i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

12. ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

iii) However, “The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances””: Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, “public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so.”

1. iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

1. v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

28.I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

“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. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.”

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

“the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing.”

29.The present case is unprecedented, indeed far removed on its facts from any of the previously reported cases. The central fact, even if no-one recognised it at the time, is that when Y applied for the adoption order she was already, not merely in fact but also in law, C1’s mother. It follows that the entire adoption process was carried on while everyone, including the District Judge, was labouring under a fundamental mistake, not, as in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, a mistake of fact but a mistake of law, and, moreover, a mistake of law which went to the very root of the adoptive process; indeed, a mistake of law which went to the very root of the need for an adoption order at all. The entire adoption proceeded upon what, in law, was a fundamentally false basis.

30.Flowing also from this is that the consequence of an order revoking the adoption order will in this case be fundamentally different from in any of the other cases. There will be no uprooting of C1 from one set of parents and return to another set of parents; C1 will remain, as hitherto ever since birth, with the same people, the people who, to C1, as also to X and Y, are and always have been C1’s parents in every sense of the word, parents emotionally, psychologically, socially and legally. X and Y always intended to be, and in law always were, C1’s parents.

31.To make an order revoking the adoption order, as I propose to do, will not merely right a wrong; it will recognise a legal and factual reality and put an end to a legal and factual fiction, what Ms Fottrell rightly described as a wholly contrived position. And it will avoid for the future – and this can only be for C1’s welfare, now, into the future and, indeed throughout life – all the damaging consequences to which X, Y and the guardian have drawn attention. As Ms Fottrell put it, C1’s welfare will be better served by restoring the status quo ante and setting aside the adoption order. I agree. I can detect no convincing argument of public policy pointing in the other direction; on the contrary, in this most unusual and highly exceptional case public policy marches in step with justice to X, Y and C1; public policy demands that I make the order which so manifestly is required in C1’s best interests.