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Author Archives: suesspiciousminds

Yet another fertility clinic paperwork error case


Readers may be aware of the ongoing litigation caused because fertility clinics had not properly ensured that their paperwork reflected the wishes and intentions of the adults involved that they would both wish to be legal parents to any child the clinic helped them conceive, very often this being just a failure to ensure that ticks were placed in each box or that the forms complied with what was required of them. This has led to a lot of human misery, where people who believed that they were a legal parent of a child were told, often years later, that they were not, and had to go through a court process to put that right. The last one I wrote about, the parents had had to adopt their own biological child and spoke in very moving terms about how awful that was.

This one is even worse, I think.

Here is how the President begins

Jefferies v BMI Healthcare Ltd (Human Fertilisation And Embryology) [2016] EWHC 2493 (Fam) (12 October 2016)




  • When he was 19 years old, Clive Jefferies, then in the Royal Army Medical Corps, served his country in the Falklands War. On 8 June 1982 he was with the Welsh Guards on RFA Sir Galahad when it was bombed and destroyed by the Argentinian Air Force at Bluff Cove. On that day the fates smiled at him. Minutes before the attack he had been in a part of the ship where the first bomb exploded, killing many men. In the aftermath of the bombing he saved the life of a comrade who was in difficulties in the water. At his funeral, 32 years later, his commanding officer described his conduct on that fateful day as magnificent.
  • Returning to civvy street in 1987, Clive served the community as a nurse and midwife. He and his wife, the claimant Samantha Jefferies, met in 1999, moved in together in 2002 and married in 2007. Their ambition to have a family was assisted by the Sussex Downs Fertility Centre, a clinic operated by the First Interested Party, BMI Healthcare Limited, and regulated by the Second Interested Party, the Human Fertilisation and Embryology Authority (HFEA).
  • Neither of the first two cycles of IVF treatment was successful. On 1 April 2014 they attended the clinic to plan a third cycle of treatment, using three embryos, created from Samantha’s eggs and Clive’s sperm, which had been frozen on 11 August 2013. It was not to be. Fate struck. On 19 April 2014, suddenly and unexpectedly, Clive collapsed and died of a brain haemorrhage, while at home with Samantha. He was only 51 years old. He had previously been fit and healthy. It came as an appalling and terrible shock to Samantha. She was devastated.


With that history, the very last thing anyone would want is for there to be a row about how long the frozen embryos, the only chance for Samantha to have the baby fathered by Clive that they had both wanted, could be stored for and whether as a result of a flaw in paperwork for there to be a suggestion that they should be destroyed.

But that is what happened.

To their credit (and no doubt just reading those three paragraphs above would have made this an easy decision)  the clinic indicated that it did not want to take any active role in the proceedings and did not try to stand in the way of Samantha’s application for a declaration that despite flaws in the paperwork the embryos could continue to be stored, which she duly got.

These cases are causing misery, suffering, anxiety and a great deal of expense and Court time. It would be nice if the Government produced some legislation which provided for an amnesty and blanket declarations that where the fault lies with the paperwork and not the adults commissioning the fertility clinic, the wishes of those adults should prevail and avoid the need for Courts. It’s not an easy bit of legislation to draft, but I hope someone takes up that challenge on behalf of all of these parents who are going through turbulent and miserable times (and sometimes as here when life has already dealt that person such a challenging hand).


Nepal-ing behaviour (I’m sorry, I’ll just get my coat)

I wrote about part 1 of this curious case where a couple living in Dubai adopted a child in Nepal, then they separated and the Court was having to deal with (a) was this a lawful adoption and if not could it be made lawful and (b) where should the child live


Application to dismiss a Guardian for bias

And as you can see from the title, part 1 was chiefly about the mother’s application that the Guardian was biased (which did not succeed)


Part 2 doesn’t disappoint either.  It was heard by Mr Justice MacDonald, who does get interesting cases and does them well.

Re QS v RS & Anor 2016


T, the girl adopted from Nepal is now 12 years old. She has been living with one or both of this couple since 2008 and within the 8 years of her time with them, SEVEN have been in profoundly acrimonious court proceedings. It is hard not to think that she might have been better off remaining in Nepal.


She was adopted in 2008 by the couple, who were at that time British citizens living in Britain. (Nepal at the time of the adoption was not one of those countries where the UK has an arrangement that makes adoptions from that country lawful if a process is correctly followed. It is now, however. )   The parents then lived for a time in Dubai and then they separated, with the adoptive mother moving back to the UK.


As MacDonald J explains, the history of litigation about this child has been horrendous and protracted



  • The background to this matter is in part contentious. Regrettably, the parents have now been engaged in one form of litigation or another since 2009. Within that context, I made clear to both parties at the outset of these proceedings that in determining the issues before the court I would not be assisted by a detailed forensic exploration of each and every allegation and counter-allegation levelled by the parents over the course of the past 8 years. It is within this context that I begin by examining the background that leads up to the present situation.



Curiously, although T is 12 years old, she was born (will be born?) in 2062.


Yes, you read that date right. 2062.


That’s because the Nepalese calendar works differently to ours

It has been possible to further refine the details of T’s early life from documentation that has become available since I gave my first judgment in this matter on 15 October 2015. By the Nepalese Bikram Samvat calendar, on 20 August 2062 T was found abandoned in a temple in Chitwan in the Federal Democratic Republic of Nepal (although I note that other documentation seen by the expert appears to suggest that T was discovered near a bridge in Kathmandu).


It does strike me as somewhat peculiar that in our financially challenged times  that the High Court is spending time and legal aid in litigating about a girl born in Nepal, who lives in Dubai and won’t be born for another 46 years….


Under the law of Nepal the adoption of T was lawful in Nepal. Following the adoption, the parents took her from Nepal to Dubai, and in Dubai T was granted British Citizenship. If you are thinking to yourself, hang on, what power has anyone in Dubai got to grant British citizenship on a girl from Nepal, you are not alone


  • Following their adoption of T the parents moved with her to live in Dubai. Following her arrival in Dubai T was granted British Citizenship. I have had sight of a Certificate of Registration dated the 16 September 2008, registering T as a British citizen. The precise circumstances in which T was granted British Citizenship remain, despite considerable efforts by the parties, unclear. However, the ‘Adoption Guarantee Letter’ dated 5 December 2006 to which I have already referred states the intention to grant British citizenship for T upon her adoption by the parents by way of the discretion afforded to the Home Secretary by s 3(1) of the British Nationality Act 1981. That letter was signed by the British Consul in Kathmandu. Within this context, and in accordance with the intent of the ‘Adoption Guarantee Letter’ T’s Certificate of Registration makes clear that she was registered as a British Citizen by the Home Secretary pursuant to the power conferred by s 3(1) of the 1981 Act on 16 September 2008.




After the parents split up and mother issued her petition for divorce in Guildford County Court, she moved to Sharjah with T. If you were not previously aware that Sharjah was all that close to Guildford, it was news to me also.

There then followed all sorts of peculiarities, culminating with the mother requiring a Royal Pardon AND a Court decision in Dubai that neither the mother nor the father were the legal parent of T, but custody (I use the term that’s in the judgment) was awarded to the father. The mother was then deported and came to England.  The mother in Dubai has no legal rights regarding T and no right to see her.  Also, given the difficulties that she had with the Royal Pardon, entering Dubai places her at risk of a complaint being made and her being detained and prevented from leaving.


The Judge remarks upon the mother’s Facebook campaign



  • One further matter of background requires mention. Following her deportation, the mother commenced a campaign on Facebook, with a Facebook page entitled “Rescue T“. Whilst the mother contends that this site evolved, ultimately, into a blog through which she seeks to assist people in a similar situation to her own, it is plain on the mother’s own evidence that over a significant period of time she placed into the public domain information that concerned matters intensely private to T. The mother also used the medium to address T publically. The father asserts, in evidence that was not challenged, that at Christmas 2014 the mother posted publically the following message to T “he even abandons you for a significant part of the Christmas holiday to go abroad leaving you alone with a maid for days on end. How utterly, incredibly selfish! Again, you best interests are being ignored. I would NEVER, NEVER do this to you!” The father had been compelled to travel abroad to see a dying relative. At the instigation of the mother the case also featured heavily in the press. The father contends he has been vilified on social media and that the mother has given a false account of him to the newspapers.
  • Within the context of the mother’s online activity, the father contends that his efforts to facilitate contact between the mother and T from June 2013 onwards, including the offer of shared holidays in a neutral country provided proper arrangements for T’s passport were put in place and offers to pay for the mother to visit T at Christmas 2013, were met with no response. The father states that he encouraged T to send emails to her mother on special occasions and there are examples of those messages in the bundle.
  • The mother concedes that she did not reply to emails from T wishing her mother a happy birthday in November 2014 and a happy Valentine’s day in February 2015. The mother asserted during her evidence that she could not be sure that the emails were from T although, significantly in my judgment, she later said that she did not reply because this form of communication did not “fit” with her (the mother’s) requests for contact. The mother further conceded that she did not respond to a request from the father that she provide him with T’s vaccination records, following which refusal T had to be re-vaccinated and suffered a dangerous reaction to one of the additional inoculations, leading to her admission to hospital.





The Judge carefully explains the process by which an adoption which is not currently lawful in English law can be recognised and legitimised by English law. Care has to be taken, because this child is ordinarily resident in Dubai where court proceedings have made a determination that the adoption is not lawful and that neither mother or father have any legal rights over T and are not her parents. So the Judge has to tread softly.


The statutory power is fairly simple



  • if the court is satisfied that it is appropriate to recognise the foreign adoption at common law the court may, if the requisite conditions are met, make a declaration pursuant to the Family Law Act 1986 s 57, which section provides as follows:


57 Declarations as to adoptions effected overseas.


(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either—

(a) a Convention adoption, or an overseas adoption within the meaning of the Adoption and Children Act 2002, or

(b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the High Court or a county court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2) The said declarations are—

(a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person;

(b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.



A trusty barometer of whether things in law are going to get complicated is where the Judge has to begin their overview of the law with a Lord Denning case, particularly one itself that refers back to a case decided before electricity was something other than an amusing new phenomenon that made dead frogs’ legs twitch and so it proves to be here



  • The Adoption and Children Act 2002 s 66(1)(e) defines “adoption” as including “an adoption recognised by the law of England and Wales, and effected under the law of any other country”. It has long been established that the recognition of a foreign adoption may be achieved by recourse to the common law. In Re Valentine’s Settlement at 841, a case concerning the recognition of an adoption effected under the law of South Africa, Lord Denning endorsed the observation of James LJ in Re Goodman’s Trusts (1881) 17 Ch.D 266 at 297:


“I start with the proposition stated by James LJ in In re Goodman’s Trusts: ‘The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations’. That was a legitimation case, but the like principle applies to adoption. But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [1953] P. 246, 257; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794 , C.A. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of country when the adopting parents are domiciled there and the child is resident there.”

Lord Denning concluded further as follows in relation to the circumstances in which a foreign adoption would be recognised at common law:

“Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents’ domicile. You look to the parents’ domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents’ domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck’s Settlement Trusts, Walker v. Luck [1940] Ch. 864, 907-908; sub nom. In re Luck, Walker v. Luck, 56 T.L.R. 915; [1940] 3 All E.R. 307 C.A. I think it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time: see In re Grove, Vaucher v. Treasury Solicitor (1888) 40 Ch.D. 216; 4 T.L.R. 762 , C.A. (legitimation by subsequent marriage); In re Wilson, decd., Grace v. Lucas [1954] Ch. 733; [1954] 2 W.L.R. 1097; [1954] 1 All E.R. 997 (adoption). I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P. (G. E.) (An Infant) [1965] Ch. 568, 585; [1965] 2 W.L.R. 1, 11; [1964] 3 All E.R. 977, C.A. The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not.”


  • Within the context of the present case, I also pause to note the dissenting judgment of Salmon LJ in Re Valentine’s Settlement at 852:


“It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption – providing that there are proper safeguards – is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents. The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parents is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned.”

and at 854:

“Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoption in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.”


  • I further note that it is clear that Dankwerts LJ came to his conclusion that he must concur with the judgment of Lord Denning with some reluctance (Re Valentine’s Settlement at 846) and that Lord Denning himself recognised that the observations of Salmon LJ cast doubt on his conclusion that the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there, stating at 843 that:


“I may, however, be wrong about this: because I recognise the force of the opinion which Salmon L.J. will express, namely, that the courts of this country should recognise an adoption in another country if it is effected by an order of the courts of that country, provided always that their courts apply the same safeguards as we do.”



  • Nonetheless, the common law rule established by Re Valentine’s Settlement is clear and has been applied consistently since 1965. Within this context, pursuant to the Adoption and Children Act 2002 s 49(2) domicile (or, in the alternative, habitual residence) is still a part of “the circumstances we claim for ourselves” when constituting a valid domestic adoption, a valid application for an adoption order under the Act requiring at least one of the couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) be domiciled or habitually resident in a part of the British Islands.




In very broad terms, if another country has similar adoption provisions to ourselves, and we would be prepared to make an adoption order of say Nepalese parents who are domiciled here and who adopt a child, we should do the same if British parents adopt a child in Nepal. The difficulty here, however, is that when the British couple adopted T, they were NOT domiciled in Nepal – they were there purely to adopt a child and had no intentions whatsoever of residing or settling there.  That is not a scenario in which a Nepalese couple could adopt in Britain  (it is perfectly legal in Nepalese law, but their law does not have the domicile element – that the person has to be living in the country where they adopt)



  • Within the foregoing context, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law were articulated by Hedley J in Re T and M (Adoption) [2011] 1 FLR 1487 and Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 as follows:


i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence;ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question;

iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption;

iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption.


You can immediately see that whilst the parents can answer yes to (ii) the answer to (i) is going to be no. The Court therefore have to consider how much the concept of adoption in Nepal marries u with the English concept.


This is becoming terribly niche, so suffice to say that if you are involved in a case where you need to know the law on a s57 Family Law Act 1986 application to legitimise an overseas adoption, this is the case to find it all in. The Judge DID legitimise the adoption in English law.



  • In this case I am satisfied that recognition would be manifestly in T’s best interests. Recognition of the adoption at common law would confirm the legal relationship of parent and child that T no doubt assumes exists between her parents and herself. In circumstances where Mr Power is clear that T, as a child adopted from a foreign country with parents who have separated, has an enhanced need for certainty as an adopted child in a trans-racial placement, recognition of her adoption will assist in providing this and will assist T developing and making sense of her identity as she grows older. Recognition will also provide T with greater legal certainty throughout her life with respect to such matters as inheritance rights. I agree with Mr Bagchi’s submission that the balance sheet in respect of recognition contains no entries in the debit column from T’s perspective.



The Judge then had to consider where T should live and with whom she should spend time. All of this is very fact specific, but there’s one issue of general principle.

If you are ever in the witness box and you are asked whether a parent loves their child, THIS is not necessarily the best way to answer that question



  • The mother was unable even to acknowledge the father’s love for T, saying that “in as much as he can love her, I imagine he does” and that “it is a domineering and controlling love done within certain conditions“. The mother’s concluded position in oral evidence appeared to be that T was “probably” physically safe in the care of her father but that she was not emotionally safe, claiming “it is damaging for her to remain with her father, in emotional terms“. These firmly held views of the father’s parenting and his physical and emotional care of T are entirely at odds with all of the other evidence before the court.




The Judge considered all of the issues relating to T and made an order that she should live with the father and have contact with the mother, either in the UAE or England.

Disclosure to the security services


Well, applications for disclosure of care proceedings to the police is something that we are used to, but an application to disclose papers in care proceedings to the Security Services is something rather new – even if with radicalisation we should have seen it coming.


X, Y and Z (Disclosure to the Security Service) [2016]


In this case which involved not only allegations of radicalisation but also allegations that one of the parents might have deliberately adminstered a harmful drug to the child by way of an intravenous cannula, the Security Services and the police were taking an interest.  There were materials within the care proceedings which were of interest to them and might have assisted in their investigations.

The complicating wrinkle is that whilst we know exactly what happens with documents that are disclosed to the police (the officers in the case read them, they are shared with the CPS and possibly with trial counsel to decide whether there needs to be an application to USE them in the criminal trial), we’re not at all sure what the internal processes of the Security Services are.

And understandably, the Security Services aren’t keen on walking us through their processes and what is involved, particularly to reveal those matters to people they are investigating under terrorism legislation.

The Security Services therefore wanted effective Cate Blanchett to have the documents and make such use of them as they saw fit including sharing them on a ‘need to know’ basis whereas the Court was being urged to not allow such unfettered access.

The compromise that was reached – and the judgment is very helpful on the detail for anyone in this position, was that the papers could be disclosed to the police, the CPS and the Security Services but any onward disclosure by those agencies would have to be with the Court’s permission following an application.


The Court set out the principles about how such an application by the Security Services might work (notably whether the parents would be served with it and allowed to attend and make representations)



  • My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.
  • In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:


“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1994) 18 EHRR CD72, 74; Brind v United Kingdom (1994) 18 EHRR CD76, 83–-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”


  • There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.
  • As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.
  • In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.
  • Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.
  • In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters:


i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412;

ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates;

iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016.

iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).



And here’s a photo of Rupert Penry Jones for Spooks fans  (gratuitous, yes, but I’m sure that a Margot Robbie tenuous connection will come up soon enough to balance it out)


Richard Armitage was good, but Rupert was THE GUY

Richard Armitage was good, but Rupert was THE GUY

LIP Service


Important High Court authority that states that where a case involves both a Litigant in Person AND a lawyer, the lawyer has to ensure that any case management documents and case law is provided to the litigant in person at least THREE WORKING DAYS before a contested hearing.


This, when you see it in black and white is of course fair. In this case, the litigant in person was handed counsel’s position statement and case law relied upon at the first morning of the final hearing, 114 pages of fresh information, much of it quite dense. That can’t be fair.

It will though necessitate a change in working practice. The reason the documents aren’t provided three days in advance generally is that they just don’t exist at that point. We have got used to a “Just in Time” pace, where the substantial prep for a hearing is done closer and closer to the actual hearing; in part just as a result of volumes of work and in part because with so many cases the position three days before a hearing bears little relationship to the position AT the hearing.


This is going to apply to a lot of private law cases, but also care proceedings where there’s an unrepresented Intervenor or party such as grandparents. It will also apply to adoption and leave to oppose adoption cases where it is very rare for the parents to obtain free legal representation.


The Judge, Mr Justice Peter Jackson also reminds us of the Practice Direction Rules which state that a bundle must be provided to counsel not less than 3 working days prior to the hearing.


The Rules

    • PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:
  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing
  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing
  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing
  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that



Hands up anyone who is regularly experiencing that.


Ah, I see Ms Azim of counsel is rising to her feet. To agree that she always receives bundles three working days before the hearing in accordance with PD27A ?  Not quite

Crisis in infinite Courts


The President has published his 15th View from the President’s Chambers, and it is a doozy. We waited a long long time for the 14th, but the 15th came soon after it.


It has been pretty apparent for a long while that the number of care proceedings has just continued to climb from the post Baby P figures, which at the time everyone thought was a temporary surge in caution and new referrals and would eventually settle down.  (Back then it went from just over 6,000 per year, to around 8,000 per year.) It didn’t. There was a very short period when the numbers dipped, but those were clearly attributable to the issue of the brand new Public Law Outline and professionals getting to grips with the new model of doing things.  Over the last 8 years, care proceedings have just continued to climb, year on year, the only thing that differed was by how much.

But then over the last two years, the rate of increase dramatically shot up.

As the President observes in his View, we’re going to be pretty close to 15,000 sets of care proceedings this year, and are likely to pass that next year. He gloomily predicts that we are heading for 20,000 a year over the next few years (I’m not sure that I agree, and I’ll explain why later)

The critical thing, of course, is that this increase of between 200 and 300 % in the volume of care proceedings over the last ten years has not been matched by a 200-300% increase in the number of Judges or Court sitting days.  Nor by the number of social workers, or Guardians, or care lawyers.  And vitally important for the Crisis that even the President says is looming, is that there has ABSOLUTELY not been a 200-300% increase in the legal aid budget for care cases – in fact there’s not only not been increases in line with inflation, but actual cuts.

At the moment, each care case has a fixed fee in terms of solicitors (they can cost a bit more if the case takes twice as much work as the average) , so when care cases increase, the number of those fixed fees increase. When, as at the moment the increase in volume is about 23% on last year, which was in turn 20% on the year before, you can see that the portion of the Legal Aid budget that deals with fixed fees for solicitors, which has had NO INCREASE AT ALL is under huge pressure.

The other costs in terms of legal aid are – counsel’s fees, and the more cases that are in Court, the higher those will go – particularly as solicitors have more volume of cases to run in the office and are able to go to Court less, those costs will go up. And experts fees – there had been a considerable reduction in the use of experts since the 2014 law changes which meant that before the Court could agree an expert they had to be satisfied that it was NECESSARY rather than just helpful or useful.  But, that was all working on the basis that social workers would be doing more and more of the assessments, and if their volume of work has gone up like that, that’s less possible.

My best case scenario is that the legal aid budget for care proceedings is around 40% overspent from 2 years ago (it takes time for all the payments to filter through, but we could be in for that experience again where the Legal Aid Agency write no cheques at all in February and March, because they’ve got no money – it happened about 6 years ago, I think. If that happens now, firms will go under).  I think the overspend might be far worse than that, in reality.


So I agree entirely with the President when he says :-


Following implementation of the recommendations of the Family Justice Review, the average duration of care cases fell rapidly month by month – the graph, accordingly, showing a constant falling line. Over the last year or so the graph has ‘flat-lined’. That it has not, as yet, begun to climb must be a matter for congratulation to everyone involved in making the system work. To keep the line level as the caseload increased by 14% is an astonishing achievement. I hope I turn out to be wrong but I do not believe that this level of achievement can be maintained as caseloads continue to rise. The fact is that, on the ground, the system is – the people who make the system work are – at full stretch. We cannot, and I have for some time now been making clear that I will not, ask people to work harder. Everyone – everyone – is working as hard as they can.

We must, accordingly, assume that the line on the graph will start to go up – to move in the wrong direction. We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis.


That’s brave and honest language from the man in charge of the system, and he is to be commended for it. Every time I’ve looked at the CAFCASS care demand stats, which are published each month, I’ve thought ‘either these numbers take a sharp dive over the next few months, or we’re all f***ed.’   And far from taking a dive, they’ve just ramped up higher and higher.

There IS no more money, there is not going to BE any more money.  So, either the Government and Legal Aid Agency work out a way of cutting VOLUMES, or COST PER CASE, or they just simply don’t pay nearly half the bills that come in, with no prospect of being able to pay them next year either.


As the President says
There are, in principle, three possible causes for the increase:

  1. that the amount of child abuse/neglect is increasing;
  2. that local authorities are becoming more adept at identifying child abuse/neglect and taking action to deal with it;
  3. that local authorities are setting more demanding standards – in other words, lowering the threshold for intervention.

I do not believe that child abuse/neglect is rising by 14% let alone 20% a year. So this cannot be the sole explanation. It follows that changes in local authority behaviour must be playing a significant role.


I think that there are fairly clear correlations between poverty in our society and neglect, and between poverty and substance and alcohol abuse (that’s not for a SECOND to say that all abuse is perpetuated by poor people, or that poor people are child abusers – just that as the level of poverty increases in the country, you’ll see a corresponding increase in the levels of neglect and alcohol misuse and substance misuse).  So I think there’s going to be an ongoing underlying increase until this country’s economic fortunes turn round.


Equally, I think that cuts to services that support and help families – which have happened and continue to happen, inevitably mean that some families without those services will fall into care proceedings.

My guess is that those two factors account for some of the underlying increase year on year – that 6-10% annual increase.  But the massive spikes – I don’t think that they are that, and there’s not the clear “Baby P” fear factor that we all thought accounted for the increases since 2008  (incidentally, the timing of the big increase and continued increases rather than care proceedings being roughly stable each year corresponds with the 2008 financial crisis and austerity since that time, disporportionately affecting the poorest and most vulnerable in society. With the benefit of hindsight, it wasn’t so much a Baby P factor as a ‘sub-prime mortgage’ factor)


The spike , my thinking is, is largely a result of the set of decisions within care proceedings that meant that Local Authorities who had children in care under s20 with parents not objecting to that were getting hammered by Judges for not having gone to Court earlier and being made to pay damages and costs.   Now, this is difficult, because I think that s20 drift (particularly with parents whose capacity to consent was compromised) was a genuine problem and a real issue and it needed to be tackled.  So I welcome those cases (though I think the damages figures are rather plucked out of the air in comparison to personal injury damages quantum), but you simply can’t get away from this :-


Judges told Local Authorities that if they held on to s20 cases and didn’t issue, they’d be told off, made to pay compensation, made to pay costs, and be in published judgments, so local and national press could report on them getting a judicial kicking.

Local Authorities issued way more proceedings.



Do I think s20 drift is an issue that needs addressing? Hell yes.

Do I think it is such an important issue that it is worth risking either – LAA not paying cheques for 3-4 months of the year and solicitors firms going out of business?  OR the alternative which is clearly attractive to the Legal Aid Agency – remove representation of children by lawyers, save 33% of the budget in one simple move?

I’m afraid that I don’t.


So, quick hotfix


  1. HRA damages claims about s20 drift or delay should be issued in the civil courts, as a civil case with the pre-action protocols.
  2. And not done within care proceedings or within care proceeding legal aid certificates.


Does this make it harder to get those HRA claims? Absolutely. Does it mean that s20 drift won’t be tackled as rigorously by the Courts as it is at present? Absolutely. Will it reduce the number of proceedings being issued. Hell yes.



I’m also afraid that from what I have heard about the effectivness of settlement conferences in avoiding final hearings in the pilot authorities, these are INEVITABLY  going to be rolled out, despite reservations that the Association of Lawyers for Children rightly have about them

Settlement Conferences


The biggest resource cost in care proceedings is the final hearing – that takes up Court time, Judge time, counsel fees, expert attendance fees.  So a scheme which in the pilots has changed the proportion of cases that settle before final hearing from about 30% to 90% is going to be massively attractive to the MOJ and the Legal Aid Agency.  Particularly in this climate. I can’t see how they won’t be rolled out nationally if the pilot when it reports even says that the proportion of cases that settle went from 30% to 50%.


Here is another idea of mine which would save money at final hearings but without being as queasy as the Settlement Conferences scheme.


At an IRH, if the parents are presenting as a couple and there are no issues which REQUIRE them to be separately represented by counsel at the final hearing, there will be a rebuttable presumption that they would have one counsel.  That will be a decision for the Judge to decide at IRH, having heard representations. Obviously if it is a case with allegations of domestic violence or coercive control, it won’t be appropriate for one counsel to represent the other, likewise if there is a disputed injury or sexual allegation where one party might have to implicate the other or decide on separation.  But I have lost count of the number of final hearings I’ve done where the Legal Aid Agency and hence the taxpayer, is paying for counsel to represent the mother and counsel to represent the father, and you could not slip a cigarette paper between their case and their submissions.  It adds to time, it adds to cost, and with a looming 40% budget overspend, it is a luxury we can’t afford.

To be honest, this is something which ought to be addressed at IRH’s anyway, but I’ve never heard parents counsel asked the question at any IRH – what is the need for parents to be separately represented here?

[In those cases where there’s an answer to that, then of course they should be separately represented, but too often it is just done without any thought or consideration, other than mum has her own team and dad has his own team.  It’s not going to save 40% of the budget, but it would be a start, and much better than robbing the child of a voice in the proceedings]


I think that the President places a lot of stock in shorter documents solving some of the problems of time and cost per case.  In my experience, shorter documents give less space for setting out the facts and the arguments clearly, and result in greater disputes.  To draw up a threshold which provides the factual allegations, the specific examples for which findings are sought AND contains the Re A analysis, is a constant battle to get into 2 pages, and LA’s are ALWAYS drawing them up with one hand tied behind their back. Something has to give, and if it is the choice between two lines where I can put in a significant allegation or dropping that allegation for a Re A analysis, I’ll drop the Re A every time. Sorry, but that’s how it is.   I think it was right to stop thresholds being so sprawling, but when Re A came in, the limit should have been made to 3 pages – 5 in exceptional cases.    (Try doing an FII threshold in 2 pages….)

Shorter social work statements – well yes, we’d all like to get rid of the waffle and duplication and jargon (not sure that the standard SWET model does absolutely anything in that regard) and a large chunk of the documents are now spent on the Re B-S analysis, so we can’t get rid of that.   Shorter statements, in space restrictions might also lead to less balance – if you have to squeeze everything in, isn’t there a tendency to focus on the stuff that helps your case, rather than provide the balanced accounts of the positive things that the parents have done. To write about the truly awful session of contact on 4th February but not make room for some of the positive feedback about other sessions?


In my experience, the most common question I hear posed to social workers in the witness box is :-


“But why isn’t this in your statement?”


So shorter statements might well be a mixed blessing. Less for people to read, but missing some of the facts, context, analysis and rigour that might lead to less need to call live evidence and to have final hearings.


I’m all for the President’s suggestion of research – let us perhaps start with a comparison of those authorities who are using SWET and whose Courts are hardline on page restrictions versus those who aren’t.  Does it affect number of proceedings, number of hearings, number of contested final hearings, time taken to conclude cases…

Who’s on first base – a family law spin




“Before I begin to deliver this judgment, I must make my most profound apologies to the transcribers who are about to have a miserable afternoon.

This is the final hearing within care proceedings. Those proceedings are issued by the Applicant Local Authority, Norfolk County Council.  The social worker is Ian Manager and the team manager is Helen Child. They are represented by counsel, Mr John Respondent.

The mother of the children,  Miss Evelyn Father, is represented by counsel, Ms Theresa Applicant.  (There should be an acute accent over the second ‘a’ in Ms Applicant’s name, transcribers)

The next party is Mr Ian Putative – he is the birth father of all three of the children. He is represented by Mr Kent Sussex of counsel.

The fourth party is the partner of the mother, Miss Father – Mr Evelyn Mother.  For a time, he was considered to be the putative father of the youngest child, but it was then established that the real father was Mr Putative.  Mr Mother is an intervenor in these proceedings and is the current partner of Miss Father, and he is represented by Mrs Michelle Parents of counsel.

The fifth parties are the maternal grandparents, Gene and Jean Father. They are represented by Mr Glenn Hampshire of counsel.


The children are represented through their Guardian, Mr Isw. That name is difficult to pronounce, and unfortunately, spelling it out is also likely to contribute to some confusion, as there is an independent social worker in the case, Mr Thomas Guardian.  The children –  Threshold, Inherent and Jurisdiction are represented through their counsel,  Mr Glynn Intervenor.

By way of crisp summary then, Mr Respondent represents the Applicant, whilst Ms Applicant represents one of the Respondents. Mr Intervenor represents the children and NOT the intervenor, who is represented by Ms Parents, who does not therefore represent the parents. The Local Authority is Norfolk, but we also have advocates named Hampshire, Kent and Sussex. Ms Child is the manager of the children’s social worker,  Mr Manager.

The mother’s name is Father, her partner is Mr Mother and he was the putative father of Jurisdiction, but the real father of Jurisdiction is Mr Putative.    The ISWs name is Guardian, and the Guardian’s name is Isw.  Threshold is in dispute in relation to Inherent and Jurisdiction, but is not in dispute in relation to Threshold.

Helpfully, my fellow Judges allowed some additional Part 25 expert instructions  for which I thank them profusely, and we therefore have a paediatric neuro-radiologist, Dr Mister, and a paediatric neurosurgeon, Mr Doctor.


In this case, the mother, Ms Father, met the father, Mr Putative, some seven years ago. They had two children together, Threshold and Inherent. The father, Mr Putative, then separated from the mother, Ms Father, who formed a relationship with Mr Mother, who it was thought for a time might be the father of Jurisdiction, though it emerged through DNA testing that he was not in fact the father of Ms Father’s baby, but that the real father was Mr Putative.


Excuse me, I’m going to rise for a few moments.

[There then follows a considerably long pause on the tape]


Thank you all for that time. The usher is disseminating amongst you some forms which I think will greatly assist. I have prepared change of name deeds for everyone. If you all sign those, for the duration of the judgment, and you can change back afterwards if so desired. ”



For those who aren’t familiar with the Who’s on first skit, here it is


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)


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.


  1. 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.