The Court of Appeal in X and Y, Re (Children: Adoption Order: Setting Aside) [2025] EWCA Civ 2 https://www.bailii.org/ew/cases/EWCA/Civ/2025/2.html considered an appeal from an application to revoke the adoption orders made on 2 children, X and Y, who were 17 and 16 at the time of the appeal hearing.
Lieven J at first instance had declined to revoke the orders considering that the Court lacked jurisdiction to revoke adoption orders on welfare grounds.
The facts of the case were fairly straightforward – the children had been placed for adoption, that placement had broken down and by the time of the appeal, both children were living with their birth mother. In relation to Y Lieven J found that it would be in her welfare interests to revoke the order as she found the position of her biological mother not being her legal mother, and her legal mother not being someone she thought of in that way distressing. Lieven J found that it was less clear cut with X.
“I do however wish to note, that I accept, certainly in the case of Y, it would be in her best interests to revoke the order. She plainly finds the present legal fiction distressing and the fact that it reflects neither reality nor her own sense of self, deeply upsetting. This has been her position consistently for a long period. The position is less clear cut in respect of X. I do not intend to carry out a detailed analysis of her welfare interests given that I have found I have no power to revoke.
It was common ground that the Court has jurisdiction to revoke an adoption order where the making of the order itself was being appealed (i.e the Court was wrong to make the adoption order and that’s reversed on appeal)
The more tricky area is whether the Court can do so on welfare grounds – i.e Lieven J had found that it would be in Y’s best interests to revoke the order but that the Court did not have the jurisdiction to do that.
This raises interesting philosophical and political (small p) issues. On the one hand we have the principle that Court proceedings and orders ought to be for the benefit of children and that their welfare is paramount, on the other there is the statutory framework of adoption which does not contain any statutory powers or provisions for reversing such orders and the public policy of the underlying intention of adoption being that it is an order for life and permanent.
The big case that comes to mind is Webster (this was a set of proceedings in which a child was adopted following findings of non-accidental injuries and then at a later criminal trial the parents were acquitted with medical reports suggesting that the injuries were organic in nature – scurvy having occurred) and the Court of Appeal in that case found that:-
“[148] In my judgment,… the public policy considerations relating to adoption, and the authorities on the point—which are binding on this court—simply make it impossible for this court to set aside the adoption orders even if, as Mr and Mrs Webster argue, they have suffered a serious injustice.
[149] This is a case in which the court has to go back to first principles. 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.”
Thus, part of the discussion here was whether in ‘highly exceptional and very particular circumstances’ the Court could permit adoption orders to be set aside, and what such circumstances might warrant that. I.e has the Court not got jurisdiction to set adoption orders aside at all, OR they have jurisdiction but only in highly exceptional and very particular circumstances.
I was a little surprised by the outcome here (I think we all mentally felt that Webster was the line on this – that theoretically the Court could set aside adoption orders in highly exceptional cases – and there have been a tiny handful of cases where this HAS happened), but the Court of Appeal here has looked very rigorously at the jurisdiction point and found that there just is not a satisfactory mechanism.
In the absence of a statutory mechanism to set the orders aside, the Court of Appeal looked at various arguments as to jurisdiction (an appeal out of time, inherent jurisdiction, FPR rule 27.5 and even the slip rule – always nice to see the slip rule) and found that none of them actually gave the Court jurisdiction.
follows from the above that the statements about the extent and nature of the powers of the High Court, originating in Re W, continuing in Re O, and culminating in the summary in AX v BX at §80(5)-(7), are not correct and should not be followed. It further follows that the two cases in which adoption orders were set aside for welfare reasons (Re PK and AX v BX) were wrongly decided, albeit from the best of motives. As was made clear in Re B, the fact that an adoption has turned out badly and that revocation would serve the interests of the adopted person, whether a child or an adult, is not a reason for the court to supply a remedy that Parliament has chosen not to provide.
The court is of course required to act within a human rights framework and it is possible to imagine such an extreme situation arising that the revocation of an adoption order becomes necessary if the court is to comply with its Convention obligations. However, the remedy in such a case would almost certainly be an appeal out of time, and not an originating application. Further, it is highly unlikely that the Article 8 right to respect for family life or for personal identity could ever be of such weight as to justify an outcome that is at odds with the statutory scheme of adoption that has prevailed in this country for a century. Such an outcome would (per Re B at 340g) “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”. Any change in that state of affairs is a matter for Parliament.
Conclusions
The conclusion that we have reached on consideration of the previously decided cases, which holds firmly that there is no jurisdiction at first instance to set aside a validly made adoption order, is on all fours with the summary of the underlying policy considerations put forward by the SoS, which we accept [paragraph 36 above]. Those policy considerations are, in turn, plainly in line with the approach of Swinton Thomas LJ, Simon Brown LJ and Sir Thomas Bingham MR in Re B. These are matters of fundamental principle with respect to adoption. Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the SoS that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.
In reaching our decision, we have been acutely aware that it will be profoundly unwelcome to each of the lay parties in this appeal. We have particularly heard what Y has said so clearly to us through the well-placed submissions of Mr Bowe. In the circumstances of this case, where she and her sister have never fully left their birth family and committed to their adoptive home, despite the consistently child-centred efforts of AM, Y and, maybe to a lesser extent, X will be profoundly upset by this outcome. If the court did have a welfare based jurisdiction then the outcome, as Lieven J indicated, would probably have been different.
We are also very conscious that this is by no means an isolated case and that there will be other, possibly many other, adoptive relationships which have broken down and for whom the ability to resort to the court to revoke the adoption order would be earnestly welcomed. But, for the reasons we have given, both the law, as passed by Parliament and as previously interpreted by this court, and the policy underlying the statutory adoption regime have inevitably led us to hold as we have done.
For the reasons that we have given, the appeal must be dismissed. Rather than holding, as all parties submitted was the case, that Lieven J’s interpretation of the extent of any inherent jurisdiction to revoke an adoption order was too narrow, we have concluded that the reality is that no such jurisdiction exists.
suesspiciousminds 