I have previously written about a High Court decision to refuse to revoke an adoption order under the inherent jurisdiction: https://www.bholegal.co.uk/revocation-of-adoption-orders/
As a brief reminder this was an application by an adoptive mother of two teenagers. The children had left her care (after many years) and returned to their birth family. They had been expressing to her that they did not wish to be adopted any more and she applied to revoke the adoption orders.
I have continued to represent the adoptive mother in this case and it has now been considered by the Court of Appeal (including the President of the Family Division, Sir Andrew McFarlane, and Lord Justice Peter Jackson) and the appeal was refused.
“…there is no jurisdiction at first instance to set aside a validly made adoption order…”
The Court of Appeal Judgment can be found here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/2 but in effect it says that adoption orders cannot be revoked under the inherent jurisdiction and that the only way to revoke them (or set them aside) would be on appeal.
It is very clear from the Judgment that the court was influenced by the position of the Secretary of State for Education (who was party to the appeal) who felt that to allow revocation would damage 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.”
What is the position now for people who wish to revoke or set aside an adoption order?
The new reality for clients who wish to revoke an adoption order is that it would have to be an application for an appeal. It is clear that appeals can be ‘out of time’ so the usual time limits do not always need to be adhered to, but there must be exceptional reasons for extending the time limit.
However, the fact that the application must be an appeal means that it must be based on there being something fundamentally wrong with the making of the order in the first place. The examples given (from previous cases) are:
- Procedural issues:
- an adoption order was made in the absence of the birth mother being aware of the application (she could not be found) and when she was made aware of it later, she appealed – a few months out of time. She had to show that reasonable steps had not been taken to find her.
- an adoption order was made in relation to an orphaned baby rescued from the conflict in Bosnia. The surviving members of the child’s family (and the child’s state appointed guardian) were given no notice of the proceedings and appealed successfully.
- A mistake of fact: a divorced birth father consented to an adoption by the birth mother’s new husband. At the time of the adoption the birth mother was terminally ill, and the birth father was unaware of that. She died a couple of months later and the children moved to his care. He appealed against the making of the adoption order, successfully, by showing he would not have consented had he known his ex-wife was dying.
Of course, not all appeals have succeeded either. These are examples of cases where the appeal failed:
- A man adopted by a Jewish couple later traced his birth father and discovered he was Muslim. He applied to set aside the adoption order 35 years after it was made. That application was refused but the court noted it might have been allowed if it had been an appeal launched shortly after the making of the order.
- Children who were adopted following care proceedings in which a court found that one or both of the birth parents caused fractures to one of the children. During care proceedings for a child born later it was suggested that there could have been a non-abusive explanation for the original fractures and the birth parents applied for permission to appeal out of time the making of the adoption orders. The Court of Appeal dealt with the appeal on the premise that the family had been victims of a serious injustice (although that had not been established) but still refused the application for permission to appeal because there had been no procedural irregularity in the making of the adoption orders, and the adoption orders had been properly and lawfully made at the time.
- Procedural irregularities do not always succeed either – there is a court of appeal case in which the birth mother was not served properly with notice of the adoption hearing, and she later made various applications to try and achieve the return of the child to her care. She was ultimately unsuccessful although the court of appeal accepted that the procedural irregularities meant the adoption order should be set aside but they made a new adoption order immediately (birth mother was represented at that hearing so had notice).
Impact on adoptive families and adopted people
The court recognised that there will be other families where the adoption has broken down who would wish to revoke adoption orders, but they were clear that these families cannot generally apply to revoke or set aside the adoption order.
“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.”
The Adoption Barometer is a survey of adoptive families and adopted people that is produced every year by Adoption UK. In 2024 the percentage of people responding to the survey who reported a child or children leaving the family prematurely (sometimes referred to as disruption or breakdown elsewhere) was up to 7% – higher than in any previous year. This is hundreds of possible adoption ‘breakdowns’ every year (although, of course, a child leaving the home prematurely is not necessarily a breakdown in the relationship).
The vast majority of these families do not bring proceedings to revoke or set aside the adoption order but now the door has firmly been shut for the few who might have tried.
Emily Boardman
Boardman, Hawkins & Osborne LLP
