Factual and Procedural Background
Child, born April 2024, was the subject of care proceedings issued by Company A because of the Birth Mother's substance and alcohol misuse and was placed in foster care. A care order and placement order were made in October 2024. Respondent Adoptive Mother and Respondent Adoptive Father (a married couple living in the area of Company B) were approved as prospective adopters in August 2024, matched with Child in April 2025 and Child was placed with them in May 2025. An adoption order was made on 21 November 2025 following a final hearing before Judge Hudson at which the Annex A report and an update from Child's social worker were relied upon; the adoptive parents' attendance had been excused.
After the adoption order, information emerged that by mid-October 2025 the adoptive parents' relationship had ended, that Respondent Adoptive Mother was in a relationship with a serving Prisoner who had a serious offending history and had used Respondent Adoptive Mother's address for release, and that Child had contact with the Prisoner. Investigations occurred and, on 2 March 2026, Company B issued care proceedings and obtained an interim care order; Child was placed with Respondent Adoptive Father's parents. Company A filed an appeal against the adoption order on 12 March 2026. Judge King granted permission to appeal on 31 March 2026. The appeal was heard by Judges Jackson, Warby and Cobb on 7 May 2026 and determined on 11 May 2026.
Legal Issues Presented
- Whether the adoptive parents' failure to disclose (a) the breakdown of their relationship, (b) Respondent Adoptive Mother's relationship with a serving Prisoner, and (c) her intention or aspiration that the Prisoner might live with her and the Child, amounted to a serious irregularity justifying setting aside the adoption order.
- Whether the adoption order was founded on a materially mistaken factual basis that fundamentally undermined the welfare analysis required by Adoption and Children Act 2002 section 1, in particular regarding realistic options for the child, likely permanence of the placement, the adopters' capacity to provide safe and stable care, and the risk profile of individuals in the household or likely to come into contact with the child.
- Whether the court's discretion to make the adoption order was exercised on an incomplete and inaccurate evidential foundation such that the court could not rationally have concluded the order was in the child's best interests if aware of the true circumstances.
- Whether making the adoption order on the flawed welfare evaluation was unfair to the child given the nature and consequences of adoption.
Arguments of the Parties
Appellant's Arguments
- Attorney Gray for Company A submitted that the adoptive parents had a duty of full and frank disclosure to the court and that the undisclosed information was obviously material to the welfare decision under ACA 2002. Whether the non-disclosure amounted to fraud, misrepresentation or omission was immaterial; the court had been induced to make an adoption order on a fundamental factual error about the household, producing a serious procedural error and injustice to the Child.
Interested Party and Child's Guardian
- Company B and Child's Children's Guardian supported Company A's submissions.
The Respondent Adoptive Mother and Respondent Adoptive Father did not participate in the appeal (the Adoptive Father did not oppose; the Adoptive Mother did not participate), and the Birth Parents did not engage in the appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re B, R & C (Children) [2002] EWCA Civ 1825; [2003] Fam. Law 305 |
Existence of a general duty of full and frank disclosure in care and adoption proceedings. |
Used to support the proposition that prospective adopters owe a clear duty to the court to make full and frank disclosure, a duty of critical importance in adoption proceedings. |
| In re F (R) (An Infant) [1970] 1 QB 385 |
Misperception/misrepresentation by adopters can vitiate adoption processes and justify setting aside orders. |
Identified as an example where inaccurate representation by prospective adopters led to successful order challenge. |
| Re M (Minors) (Adoption) [1991] 1 FLR 458 |
Consent to adoption vitiated by mistake where material facts were unknown. |
Referenced as precedent where lack of material information undermined consent and justified remedy. |
| Re K (Adoption and Wardship) [1997] 2 FLR 221 |
Failure to give proper notice to interested family members can constitute fundamental breach of natural justice. |
Referenced to illustrate that procedural breaches affecting participation can render adoption decisions unjust. |
| Re J (A Child) (Adoption: Non-party Appeal) [2018] EWFC 8; [2018] 4 WLR 38 |
Concealment by adopters of material background (paternity/identity) rendered adoption order predicated on incomplete and false information; appeal allowed and order set aside. |
Applied as a recent and directly analogous authority where concealment by adopters justified setting aside an adoption order; used to illustrate the type of 'other irregularity' contemplated by the rules. |
| Re W (A Child) [2010] EWCA Civ 1535; [2011] 1 FLR 2153 |
Legal consequences and revival of placement/care orders following setting aside of adoption orders. |
Relied on to explain that on setting aside the adoption order the placement order in favour of Company A revives and that this confers parental responsibility as an adoption agency, with statutory effects described in ACA 2002. |
Court's Reasoning and Analysis
The court emphasised the paramount importance of the child's welfare under ACA 2002 section 1 and that assessments of adopters must include an evaluation of the stability and permanence of a couple's relationship (FPR 2010, PD14C Annex A). The court explained the procedural context of adoption hearings (limited oral evidence, reliance on Annex A reports and any updating information) and the consequential reliance on the good faith of informants.
The court reiterated the well-established duty of full and frank disclosure by parties in care and adoption proceedings and cited authorities demonstrating that non-disclosure or misrepresentation has in the past led to successful appeals and setting aside of orders. The court found that fresh evidence admitted on appeal showed the true facts existing at the time of the adoption hearing: the couple's relationship had ended and Respondent Adoptive Mother was involved with a Prisoner who had a concerning offending history and had been represented as likely to have contact with Child.
Applying the legal principles, the court concluded that (1) on the true facts an adoption order would have been the wrong order; and (2) the adoptive parents' failure to make full and frank disclosure amounted to a serious procedural irregularity rendering the proceedings unjust. The court stressed that there was no fault by Judge Hudson, who reached the correct decision on the material before her, but that the misinformation fundamentally undermined the welfare evaluation required for the adoption order. The court therefore allowed the appeal and set aside the adoption order.
The court addressed immediate practical consequences: the revival of Company A's placement order and parental responsibility under ACA 2002, the existence of a separate interim care order granted to Company B (giving Company B parental responsibility under the Children Act 1989), and an agreed transitional arrangement between the local authorities pending further care proceedings.
Holding and Implications
ADOPTION ORDER SET ASIDE
Holding: The Court of Appeal allowed Company A's appeal, set aside the adoption order made on 21 November 2025 and dismissed the adoption application.
Immediate implications:
- Child ceases to be a member of the adoptive family and reverts to being a member of his birth family for legal purposes.
- Respondent Adoptive Mother and Respondent Adoptive Father no longer have parental responsibility by virtue of the adoption order; the placement order in favour of Company A revives, giving Company A parental responsibility as an adoption agency (ACA 2002 s.25(2) and (4)).
- Company B's interim care order remains in effect, giving Company B parental responsibility (Children Act 1989 s.33(3)).
- The parties agreed a transitional arrangement authorising Company A to exercise parental responsibility for a limited period, with Company B authorised to exercise parental responsibility limited to safeguarding and placement supervision, pending further hearing in the Family Court.
Broader implications: The decision underscores the critical duty of full and frank disclosure by prospective adopters and confirms that non-disclosure that materially undermines the welfare assessment can justify setting aside an adoption order. The judgment does not purport to create new law beyond applying established principles to the admitted fresh evidence.