A case has just been published in which I represented the applicant, an adoptive mother, who sought to revoke adoption orders made many years ago in relation to two children known as X and Y. The case was heard by Mrs Justice Lieven in the High Court and the judgment can be found here:
https://www.bailii.org/ew/cases/EWHC/Fam/2024/1059.html
During lockdown the adoptive mother had allowed the birth mother to move in with her and the children, to escape an abusive relationship. When she left, the children followed. One of the children was always clear she wanted to be ‘unadopted’ but the other was less certain. By the time of the hearing both children, and the birth mother, supported our application to revoke.
Before this case was heard it was thought by most lawyers that adoption orders could be revoked if there were procedural irregularities, or on a welfare basis if there were exceptional circumstances. There had been a case in the High Court in 2021 that seemed to confirm this (as well as other cases before that).
We argued that this case was exceptional, and the orders should be revoked because the children’s welfare demanded it. The Judge said:
- Secondly, it is not clear to me how truly exceptional the situation that arises in the present case actually is. The Court ordered the parties to investigate the evidence on the breakdown of adoption placements. However, producing a solid statistical basis has proved impossible. The only statistics produced have a figure of 4-9% of adoptions breaking down, although it is not clear precisely what that means. In any event, this figure suggests that adoption breakdown is far from being an exceptional situation.
- Sadly, such failed adoptions have probably become more common with somewhat older children being adopted, and with social media making it much easier for children and their birth parents being able to trace each other. This will be particularly the case where the children are old enough to remember their birth parents when they are adopted.
- It is submitted in this case that the exceptional circumstance is that it is the adoptive parent who is seeking to revoke the adoption orders. I accept that this is likely to be unusual, but the principle of whether the court has the power to revoke an order on welfare grounds cannot depend on the nature of the applicant. It might well be the case that in circumstances where the children were the applicant, an adoptive parent would agree to the revocation if they thought it was in the children’s best interests.
The Judge decided that adoption orders cannot be revoked on a welfare basis, which is a departure from previous caselaw.
Unfortunately, this means that now it is unclear whether any court would revoke an adoption order.
Please read the follow up article: Revocation of adoption orders: Part two (the Court of Appeal)
If you are contemplating applying to revoke an adoption order, please get in touch with Emily Boardman at BH&O LLP.
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