Prospective adopters’ continuing duty of full and frank disclosure: non-disclosure of relationship breakdown and safeguarding risks justifies setting aside an adoption order

Case: M (A Child: Adoption: Duty of Disclosure)
Citation: [2026] EWCA Civ 568
Court: England and Wales Court of Appeal (Civil Division)
Date: 11 May 2026
Judges: Lord Justice Peter Jackson, Lord Justice Warby, Lord Justice Cobb

1. Introduction

This appeal concerned whether an adoption order—made in favour of a married couple—should stand where the Family Court had been materially misled about the adopters’ circumstances at the time of the final adoption hearing. The appellant local authority (LA1) sought to set aside the order after later discovering that the adopters had separated before the adoption hearing and that the adoptive mother had formed a relationship with a serving prisoner, with consequent safeguarding implications and plans for his release to her address.

The appeal was supported by the child’s Children’s Guardian and by a second local authority (LA2), which had by then obtained an interim care order and removed the child from the adoptive mother’s care. The adoptive father did not oppose the appeal; the adoptive mother did not participate. The birth parents were not parties to the appeal and did not engage.

Key issues

• Whether prospective adopters owe a continuing duty of full and frank disclosure to the court up to the making of an adoption order, including about relationship stability and household safeguarding risks.
• Whether non-disclosure of relationship breakdown and a new high-risk relationship constituted a “serious… irregularity” rendering the adoption decision “unjust” and/or made the decision “wrong” (CPR 52.21(3)).
• What the legal consequences are once an adoption order is set aside, including revival of placement/care orders and the management of parental responsibility between local authorities.

2. Summary of the Judgment

3. Legal Framework Applied

3.1 Welfare and relevant welfare factors

The court emphasised the paramountcy principle in adoption decision-making: when a court is coming to a decision relating to adoption, its paramount consideration is the child’s welfare throughout the child’s life (ACA 2002 s 1). The statutory factors highlighted included:

• the child’s needs;
• risk of harm; and
• the child’s relationship with prospective adopters, including the likelihood of that relationship continuing and the value to the child of it doing so (ACA 2002 s 1).

3.2 Adoption evidence: Annex A report and relationship stability

The adoption process requires a confidential report on adopter suitability (FPR 2010 r 14.11), with contents prescribed by PD14C Annex A. The Court of Appeal singled out the requirement to assess:

• “the status of the relationship and an assessment of the stability and permanence of their relationship” (PD14C Annex A, Section C, Part 1(h)); and
• the adopters’ ability/suitability to bring up the child throughout childhood (PD14C Annex A, Section C, Part 1(m)).

On the court’s analysis, relationship stability is not peripheral: it is a “fundamental component” of the adoption decision.

3.3 Procedure: attendance and the court’s “supervisory” role

Although FPR 2010 r 14.16 generally requires personal attendance at the final hearing, attendance is frequently excused (r 14.16(7)) to protect placement confidentiality and reduce risk of contact with birth family. In practice (and in this case), that commonly means:

• no oral evidence at the adoption hearing; and
• the court relying heavily on Annex A material and any updates provided.

The Court of Appeal characterised adoption hearings as a “very particular” procedure in which the court’s ability to get the decision right depends “heavily upon the good faith and efficient cooperation” of those providing information—“above all, prospective adopters”.

4. Analysis

4.1 The new/clarified principle: a continuing duty of full and frank disclosure by prospective adopters

The central doctrinal move in the judgment is the explicit articulation—within the specific procedural realities of adoption—that each prospective adopter owes a clear, continuing duty to the court to provide full and frank disclosure of their circumstances at every stage up to the making of the adoption order, and that the duty can be breached by “words, deeds or silence”.

While the duty of candour is familiar in children proceedings generally, the court located it as critical in adoption given:

• the exceptional, life-long legal consequences of adoption (change of legal identity and family membership);
• the absence (often) of oral evidence at the final hearing; and
• the court’s reliance on written assessment evidence that may have been completed months earlier.

4.2 Precedents Cited (and how they shaped the outcome)

Authority (as cited in the judgment)	Point for which it was used	Influence on the court’s reasoning
Re B, R & C (Children) [2002] EWCA Civ 1825; [2003] Fam. Law 305	General duty of full and frank disclosure in children proceedings described as “self-evident” (Thorpe LJ).	Anchored the duty of candour as a baseline principle, allowing the court to treat non-disclosure not as an unfortunate lapse but as a procedural wrong that strikes at the integrity of the process.
In re F (R) (An Infant) [1970] 1 QB 385	Adoption order vulnerable where obtained on inaccurate representation (birth mother’s location).	Demonstrated that adoption orders can be set aside where the court is materially misled, even long after the event, because the legitimacy of adoption depends on reliable foundational facts.
Re M (Minors) (Adoption) [1991] 1 FLR 458	Consent vitiated by mistake where material facts were unknown (terminal illness).	Supported the proposition that adoption outcomes are unsafe where critical facts—going to the essence of the decision—are missing or misconceived.
Re K (Adoption and Wardship) [1997] 2 FLR 221	Fundamental breach of natural justice where proper notice not given to key parties.	Reinforced that adoption procedure must meet high standards of fairness and integrity; foundational procedural defects justify appellate intervention.
Re J (A Child) (Adoption: Non-party Appeal) [2018] EWFC 8; [2018] 4 WLR 38	Adoption order set aside where step-parent adopters concealed paternity/whereabouts; described as “predicated on incomplete and essentially false information” and “unjust” due to “serious… irregularity”.	Provided a close analogue: adopter misconduct misleading the court, rendering welfare evaluation unreliable. It also supplied the conceptual bridge between non-disclosure and the appellate test of “serious irregularity” causing injustice.
Re W (A Child) [2010] EWCA Civ 1535; [2011] 1 FLR 2153	Setting aside adoption order revives antecedent care/placement orders.	Determined the post-appeal legal landscape: upon setting aside adoption, LA1’s care and placement orders revived automatically, shaping the transition and allocation of parental responsibility.

4.3 Legal reasoning: why the adoption order could not stand

4.3.1 Materiality: relationship stability and safeguarding are core welfare facts

The undisclosed facts went to the heart of the welfare decision required by ACA 2002 s 1. The Annex A report had presented the adopters as a “strong and stable” couple; the reality was separation (including the adoptive father moving out before the final hearing) and a new relationship presenting obvious safeguarding concerns, including contact between the child and the prisoner and an intention/aspiration for cohabitation on release.

The Court of Appeal treated these facts as inherently material to:

• the permanence and likely continuity of the adoptive placement;
• the adopters’ capacity to provide safe, stable care; and
• the risk profile of adults likely to have contact with the child.

4.3.2 Procedural unfairness/injustice: the court’s supervisory role depends on truthful updating

Because adoption hearings typically proceed without oral evidence and may excuse adopter attendance, the decision-making architecture assumes candid updating. The court held that the adopters’ non-disclosure amounted to a “serious… irregularity” (within CPR 52.21(3)(b)): the court was induced to act on a “fundamentally mistaken basis”.

4.3.3 “Wrong” and “unjust”: two routes to the same outcome

The court explicitly found both limbs of the appellate test satisfied (CPR 52.21(3)):

• Wrong (CPR 52.21(3)(a)): on the true facts existing at the time, an adoption order in favour of joint applicants was not an order that could properly have been made.
• Unjust due to serious irregularity (CPR 52.21(3)(b)): the non-disclosure was not a minor procedural defect but an “other irregularity” that rendered proceedings unjust.

Importantly, the court stressed there was “of course no fault” on the part of the judge: the error was informational—caused by parties’ failure to discharge the duty of disclosure.

4.4 Consequences and remedial orders: status, parental responsibility, and revived orders

Once the adoption order was set aside and the application dismissed, the child:

• ceased to be a member of the adoptive family and “revert[ed]” to being a member of the birth family; and
• the adopters ceased to hold parental responsibility.

Applying Re W (A Child) [2010] EWCA Civ 1535; [2011] 1 FLR 2153, the earlier care and placement orders in favour of LA1 revived. The judgment then mapped statutory effects:

• Under the placement order, LA1 holds parental responsibility as an adoption agency with power to restrict the exercise of parental responsibility by birth parents (ACA 2002 s 25(2) and (4)).
• While the placement order is in force, the care order is of no effect (ACA 2002 s 29(1) (noting the judgment’s typographical reference to “ACA 2022”)).
• Separately, an interim care order in the new proceedings gave LA2 parental responsibility with corresponding powers (Children Act 1989 s 33(3)).

The court recognised the resulting dual-local-authority parental responsibility position as “most unusual”, and endorsed an inter-authority agreement (scheduled to the appellate order) providing for a five-week transitional period, including a limited authorisation for LA2 to exercise parental responsibility for safeguarding and placement supervision (Children Act 1989 s 2(9)).

5. Impact

5.1 For adoption practice: disclosure, updating, and hearing discipline

The decision is likely to be cited for the practical and normative proposition that adopter candour is not merely expected but legally essential to the integrity of adoption adjudication. It also carries an operational warning: where Annex A reports are completed significantly before the final hearing and adopter attendance is excused, agencies and courts must be alert to the need for up-to-date information.

The court did not lay down a prescriptive checklist, but the logic of the judgment encourages:

• clear, repeated written reminders to adopters of the continuing duty to update changes (relationship status, household composition, significant new relationships, criminal justice involvement, and any safeguarding-relevant developments);
• late-stage confirmation steps by social workers shortly before the final hearing; and
• judicial inquiry at the final hearing aimed at verifying that core suitability assumptions in Annex A remain accurate.

5.2 For appellate law: adoption orders remain vulnerable to foundational misinformation

The case consolidates a line of authority showing that adoption orders—despite their intended permanence—can be set aside where obtained on incomplete/false information that undermines welfare evaluation or fundamental procedural fairness. The court’s dual reliance on “wrong” and “serious irregularity” provides flexible appellate pathways where material non-disclosure is later established through fresh evidence.

5.3 For inter-authority child protection: managing rare “dual PR” scenarios

The judgment is also a practical reference point for the management of parental responsibility where reviving placement orders intersect with separate interim care orders held by another authority. The court’s endorsement of a structured, time-limited agreement underscores the need for coordinated governance to avoid drift, duplication, or conflict in decision-making.

6. Complex Concepts Simplified

6.1 “Full and frank disclosure”

This means telling the court (and, in practice, the assessing professionals) the whole truth about anything that could matter to the legal decision—promptly, clearly, and without waiting to be asked. Importantly, “silence” can mislead: failing to update the court about major changes can be as serious as an affirmative lie.

6.2 “Serious irregularity” on appeal

Under CPR 52.21(3), an appeal can succeed if the original decision was “unjust” because something went seriously wrong in the procedure or process. Here, the “irregularity” was that the court’s decision-making process was corrupted by material non-disclosure, leaving the judge unable to carry out a reliable welfare evaluation.

6.3 “Setting aside” an adoption order

Setting aside reverses the legal effect of adoption: the child’s legal ties to the adopters end, and earlier public law orders (notably placement orders) may revive, reconfiguring who holds parental responsibility and what legal powers apply.

6.4 Placement order vs care order (in brief)

• Placement order (ACA 2002): authorises placement for adoption and gives the local authority parental responsibility in its adoption-agency role, including power to limit birth parents’ exercise of parental responsibility.
• Care order (Children Act 1989): gives the local authority parental responsibility for the child’s welfare decisions; but the ACA 2002 can suspend the effect of a care order while a placement order is in force.

7. Conclusion

M (A Child: Adoption: Duty of Disclosure) [2026] EWCA Civ 568 stands as a clear Court of Appeal statement that prospective adopters must maintain full and frank disclosure to the court up to the adoption order, and that material non-disclosure—especially about relationship stability and safeguarding risks—can render an adoption decision both “wrong” and “unjust” due to serious irregularity. The judgment reinforces that adoption’s permanence depends on the integrity of the information presented, and it highlights practical safeguards needed where adopter attendance is excused and written reports may be out of date.