X and Y, Re (Children: Adoption Order: Setting Aside)

Factual and Procedural Background

This opinion concerns an appeal against a refusal to revoke adoption orders made in 2013 for two children, aged 17 and 16 at the time of the hearing. The single adoptive mother applied to revoke the adoption orders, supported by the children (held Gillick competent) and their natural mother. The adoption placement had broken down, and the children had subsequently lived with their natural mother or birth father. The local authority had issued care proceedings, and child arrangement orders were made for the children to live with their natural family members. The application to revoke was refused by the High Court on the basis that the court lacked jurisdiction to revoke adoption orders solely on welfare grounds. The appeal raises the central legal question of whether the court has jurisdiction to set aside a valid adoption order other than by way of appeal, and if so, the manner and basis upon which such jurisdiction should be exercised.

Legal Issues Presented

1. Does the court have jurisdiction to set aside a validly made adoption order other than by way of appeal?
2. If such jurisdiction exists, what is the manner and basis upon which it should be exercised?

Arguments of the Parties

Appellant's Arguments

• The court has an inherent jurisdiction to revoke adoption orders in exceptional circumstances, including on welfare grounds, despite strong policy considerations favouring finality.
• The legal fiction created by the adoption order conflicts with the children's welfare and lived reality, necessitating correction by revocation.
• The High Court and Court of Appeal have not excluded welfare as a consideration in revocation applications, although it may not be paramount.
• The judge erred in requiring the circumstances to be exceptional; where the adoption order conflicts with the child's welfare, revocation should be possible.
• The appellant no longer pursued a claim that the Adoption and Children Act 2002 provisions are incompatible with Article 8 of the European Convention on Human Rights.

Secretary of State for Education's Arguments

• Adoption orders are intended to be final, irreversible, and create a permanent transfer of parental status.
• Allowing revocation on welfare grounds risks undermining the lifelong commitment of adopters and deterring prospective adopters.
• Open adoptions and social media increase contact with birth families, but finality and certainty in adoption remain essential.
• The Secretary of State accepts the existence of a power to revoke under inherent jurisdiction only in highly exceptional circumstances, and not to challenge finality routinely.
• The Secretary of State would not argue against limiting revocation jurisdiction to appeal cases.

Local Authority's Arguments

• The Adoption and Children Act 2002 does not establish a comprehensive statutory scheme regarding revocation.
• The courts have developed a principled inherent jurisdiction to revoke adoption orders in exceptional cases.
• There is a pressing social need to avoid children being trapped in legal fictions contrary to their welfare.
• The local authority supported the appeal but sought to uphold refusal to revoke for one child on welfare grounds via Respondent's Notice.

Natural Mother's Arguments

• The court has sufficient information to make a welfare evaluation supporting revocation of one child's adoption order.
• The other child's case may require remittal for further consideration.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of statutory provisions, policy considerations, and case law concerning the revocation of adoption orders. It emphasised that adoption orders are unique in family law because they are intended to be final and lifelong, legally severing the relationship between the child and their natural parents and creating a new parent-child relationship with the adopters. The statutory scheme under the Adoption and Children Act 2002 does not provide for revocation of adoption orders on welfare grounds, except in limited circumstances such as legitimation or subsequent adoption.

The court analysed leading authorities, particularly Re B, which holds that the High Court does not have an inherent jurisdiction to revoke adoption orders absent fundamental breach of natural justice or procedural irregularity. Cases permitting revocation on welfare grounds at first instance (e.g., PK v K, Re O, AX v BX) were found to be wrongly decided as a matter of law, albeit motivated by welfare concerns. The court noted that appellate jurisdiction exists to set aside adoption orders in exceptional cases, including appeals out of time, but this does not extend to an original jurisdiction at first instance.

The court rejected submissions that welfare considerations alone can justify revocation, stressing that the statutory framework and public policy strongly protect the finality and stability of adoption orders. The court acknowledged the profound distress caused to the children and natural mother but held that any change to the law allowing revocation on welfare grounds is a matter for Parliament, not the courts.

Additionally, the court observed that procedural mechanisms such as the Family Procedure Rules 2010 allow for correction of errors in orders and judgments, which may address some cases of flawed adoption orders without invoking inherent jurisdiction.

Holding and Implications

The court DISMISSED THE APPEAL.

The court held that there is no inherent jurisdiction at first instance to revoke a validly made adoption order on welfare grounds. The only route to challenge such orders is by appeal, including appeals out of time in exceptional circumstances. This preserves the finality, permanence, and stability that adoption orders are intended to confer, which is fundamental to the statutory adoption regime and public policy.

The decision directly affects the parties by refusing the revocation application but does not establish any new precedent beyond reaffirming the strict limits on judicial power to revoke adoption orders. The court recognised the emotional and welfare difficulties faced by the children and natural mother but concluded that changes to allow revocation on welfare grounds must come from Parliament.