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J (A Minor - Revocation of Adoption Order) [2017] EWHC 2704 (Fam)

Hayden J corrects judicial error in purported revocation of adoption order, where that order was ultra vires.

In a short judgment, Hayden J sought to correct an error in procedure arising out of a decision of the Family Court sitting in Manchester, in seeking to revoke an adoption order that was itself made in unusual circumstances.

Following an application to adopt being made on 11 September 2017, the matter came before the Family Court in Manchester on 26 September 2017. The birth mother appeared at this hearing, unrepresented, to challenge the making of an adoption order. No other parties were in attendance, having had their attendance excused. The trial judge considered the mother's application for leave to oppose the adoption order under section 47 ACA 2002 and concluded, in a reasoned judgment, that leave should not be granted – this being the key matter before her for consideration.

Unusually, however, the trial judge went on to make a final adoption order despite there being "insufficient material" before her to do so. On being notified of the difficulties in making such an order, the trial judge sought to revoke the adoption order on or around 23 October 2017. The process of revocation, however, requires the High Court to invoke the inherent jurisdiction – the trial judge, as judge of the county court, did not have the jurisdiction to make a revocation order. The matter therefore came before Hayden J for consideration.

Putting right this error, Hayden J concluded that it was a proper exercise of the Court's powers to revoke the adoption order of its own motion. Hayden J emphasised the "important" and "inalienable right" of J to know "that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity". As a result, the adoption order was revoked and the original application listed for directions.

Summary by Anita Rao, barrister, Field Court Chambers
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Neutral Citation Number: [2017] EWHC 2704 (Fam)
Case No: MA199/17

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
[PRESTON DISTRICT REGISTRY]


Date: 30/10/2017


Before:

MR JUSTICE HAYDEN

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Re: J (A Minor) (Revocation of Adoption Order)
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Approved Judgment

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mr Justice Hayden :
1.  On the 14 December 2016, HHJ Roddy, sitting in the Family Court in Manchester, granted a Placement Order in respect of J who was, at that stage, just over 2 years.  J has been described as a happy, friendly, confident little boy who loves to engage with others and is keen to accept and reciprocate affection.  Unsurprisingly, it was possible to link him with a prospective adoptive placement quickly and he was placed with adoptive carers on 11 April 2017.  An application to adopt was issued on the 2 August 2017. 

2. The Family Court directed that the first application should be heard before a circuit Judge on 26 September 2017.  The Order, which was made administratively, informed the parties of the Hearing but indicated that attendance was not required.  It provided that if a party wished to attend, notice should be given before 11 September 2017.  It also provided as follows:

"If you attend the hearing you may be heard on the question of whether or not an Order should be made, unless you apply for permission of the Court to oppose the making of the Order under Section 47(3) or (5) of the Adoption & Children Act 2002 and the Court refused permission."

3. The relevant sections require to be set out: 

47 Conditions for making adoption orders
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave….;

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.

4. On the 26 September the case came before Judge Penna.  Unravelling quite what happened at the hearing has not been straightforward.  The Local Authority, as is usual at a first directions hearing, was not present.  The birth mother, accompanied by her own mother, attended but was not represented.  It is clear, that her application was to seek leave (as is required) to oppose the adoption order (see above).

5. It is unnecessary for me to consider the applicable criteria, in respect of which guidance is found in Re: B-S (Adoption: Application S47(5) [2014]1 FLR 1035, CA but I would emphasise that it requires the applicant to establish the necessary change of circumstance and then for the Court to evaluate the application in the context of the child's best welfare interest long term.  In considering the latter, a very important consideration is the current state of affairs and what will or may happen in the future (see Re. H (Adoption Order: Application for Permission for Leave to Oppose)[2014] 1 FLR 1266, CA), I would also note that the Court of Appeal has emphasised  that 'due process' must be observed and documents relevant to the Leave to Oppose issue must be disclosed (see Re. T (Adoption Order)[2013]1 FLR 360, CA). 

6. The appropriate course might have been to impress on the mother the complexity of her application and her need to seek legal advice and/or representation. In any event, given the emphasis on 'due process' which operates, by definition, reciprocally between the parties, the mother ought to have been required to file evidence and directions given accordingly.  From this, would have stemmed further directions for a statement in response by the Local Authority, appointment of a CAFCASS guardian and an inter partes re-listed hearing. 

7. It is abundantly clear, I regret to say, that the Judge became confused as to what application she was hearing and what procedure she was following.  The Judge adjourned to consider her decision, handing down a written judgment on 3 October 2017.  Very properly the Judge addressed the criteria in Section 47(5), concluding that the mother had failed to demonstrate sufficient change to justify 'reopening the issue of the plan for [J]'.  She observed that J was happily placed with devoted carers and that his placement 'has offered a boost to his positive development' and that 'with every week that passes he is progressing well'. The Judge went on to note that the mother's own assertion that she had stopped drinking alcohol (one of the causes of her parenting deficits) for a period of three months was insufficient to establish the first element of the test in Section 47.  Judge Penna noted 'there is a substantial risk that I would be setting her up to fail'.  The Judge went on to consider the benefits of J's placement in the context of the wider discretionary exercise and concluded that J's mother had 'not shown sufficient change for me to grant her leave to oppose the adoption'. 

8. Had the Judge stopped there all might have been well but, inexplicably she proceeded to grant an adoption order to the applicants, at this first directions hearing.  She manifestly had insufficient material before her to make the Order which is perhaps the most draconian in the Family law canon.  This was a complete aberration and plainly flawed.  The Judgment was handed down on the 9 October 2017, circulated both to the parties and to the Registrar General, in order to make an entry in the Adopted Children Register in the form specified by regulations.  It must be stated unambiguously that the Order provided that 'the child is adopted by [K] and [N], the applicants.'  Finally, the Court directed that the entry in the Register of Live Births be marked with the word Adopted.  As I understand it, J's carers now believe him to be their  adopted son. 

9. On the 10 October 2017 a lawyer for the Local Authority clearly recognised that something had gone drastically wrong.  She contacted the Court expressing her concern.  Her communication, which was by email, was passed to Judge Penna to consider. It seems to me that the Judge must have realised her mistake pretty quickly as she issued an order which purported to revoke the Adoption Order. 

10. A number of basic principles need reiteration.  Once a child is adopted this entirely severs all legal ties with the birth family and introduces a new legal parental relationship with the adopter's family.  The Court does not make an adoption order unless it is satisfied both that nothing else will do and, for the particular child, nothing else is better.  It follows, that the Court will be similarly cautious when contemplating a revocation of an adoption order which is intended to be final and lifelong.  Such revocations were described by Pauffley J in PK the Mr & Mrs K [2015]EWHC 2316 (FAM) as 'highly exceptional and very particular'.  Their 'exceptional' nature has been repeatedly emphasised see Re. B (Adoption: Jurisdiction to set aside)[1995](FAM239, Re. Webster v Norfolk County Council and the Children (by their children's guardian) [2009] EWCA Civ 59, Re. W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.  I draw the inference that Judge Penna revoked the Order in recognition of her error on the basis of the facts and chronology that I have outlined.  They permit of no other interpretation.  The Judge did not set out her reasoning in any additional judgment. 

11. More problematically, the process of revocation requires the High Court to invoke its inherent jurisdiction.  This signals both the rarity of the Order and, inevitably, its unavailability to Judge Penna sitting in the County Court.  As it transpired, before the Order was drafted, or sealed, the matter came to the attention of HHJ Newton, the Designated Family Judge.  Judge Newton informed me of the situation and transferred the case to me on 23 October 2017.  Judge Newton's prompt action was doubtless driven by her recognition of the real potential for distress to both the birth parents and the adopters in consequence of what has occurred.  An equally swift response is therefore required from me.  I have not requested the attendance of the parties and have been able properly to deal with this case administratively,

12. It strikes me that there are two equally legitimate alternatives here, either to refer the matter to the Court of Appeal or to address it myself in this Court.  The latter course has the obvious attraction of avoiding delay.  Primarily however, I have come to the conclusion that as Judge Penna's purported Revocation Order was outside her powers, thus plainly void and as it was intercepted before being drawn or sealed, consideration of revocation may properly be addressed in the High Court.  On the facts of this case, probably uniquely, I am also satisfied that the Court can and indeed should consider revoking the Order of its own motion.

13. For the reasons which are set out above, I consider the circumstances in which this adoption order was made are 'highly exceptional and very particular' to use Pauffley J's elegant and succinct phase.  Whilst the Law Reports do not reveal this situation as having occurred before, there are some similarities with Re. K (Adoption & Wardship) [1997]2 FLR 221. There the Court of Appeal indicated that where an adoption procedure had been fatally flawed, an application to revoke should be made to the High Court.  Here there was, in short, a complete absence of due process and a wholesale abandonment of correct procedure and guidance.  That is a clear basis upon which to consider whether the Order should be revoked. 

14. I am profoundly conscious of the impact of my decision on both the birth parents and the prospective adopters both of whom will be distressed and unsettled by this uncertainty.  I would however, emphasise one important and, in my judgment, inalienable right, namely, that of J to know in the future that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity. 

15. For the avoidance of doubt, I confirm that Judge Penna rejected the application for leave made pursuant to Section 47 ACA, for all the reasons set out in her judgment.  For the reasons analysed above I revoke her adoption order.  This case is to be restored expeditiously before HHJ Newton who will hear the adoption application, to be made in compliance with the established procedure and practice.  The listing of this case is to be regarded as a judicial responsibility not an administrative one.  Accordingly, I direct that it be listed next week before HHJ Newton for directions.