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ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam)

Case in which the court took the highly unusual and exceptional step of exercising its inherent jurisdiction and revoking an adoption order which had been made following a flawed process, replete with errors and omissions.

This was an application by a child's birth mother (ZH) to revoke an adoption order made in 2016 in relation to T, now aged 4.

ZH became separated from T when trying to secure entry to this country from Somalia via Holland, and she arrived 2 years after T. T had been delivered to her paternal aunt and uncle (HS and MO) who lived in the UK. HS and MO represented themselves in adoption proceedings, brought because they were being asked for court papers about the arrangement for T to live with them, and an adoption order was made.

All parties agreed the court should take the highly unusual and exceptional step of exercising the court's inherent jurisdiction and revoking the adoption order, and that T should be placed in ZH's care.

Theis J emphasised the need for courts to carefully scrutinise applications for adoption, with robust systems to ensure the gateway requirements are met. This requirement for scrutiny is heightened in non-agency adoptions particularly when made by parties without the benefit of legal advice or representation. The Family Procedure Rules Committee may wish to give consideration to amendments to the adoption application form.

Theis J also highlighted the obligation on LAs to prepare the Annex A report on the suitability of the adopters to adopt, an obligation which is more onerous in non-agency adoption applications and should always involve some legal advice. The report needs to be prepared within a robust framework in the LA that will provide effective scrutiny of the report, both legal and social work.

The LA in this case accepted the wholesale failure by them to undertake the necessary enquiries as were required of them by PD14C. Their revised procedure regarding non-agency placements was set out in full in a postscript to the judgment as it may benefit other LAs.

No-one suggested that HS and MO acted other than in good faith. They did not receive any advice from a family specialist and appeared unaware of other orders that could be made. There was no evidence any professional discussed or raised the option of other orders with them and they were not seen with the assistance of interpreters.

In this case adoption was a disproportionate order for what was required, and was made following a flawed process, replete with errors and omissions. Theis J set out the numerous flaws in the process in detail, which included:

• T had not lived with HS and MO for at least three years and the court had not granted them leave to make the adoption application.

• No notice of intention to adopt had been given to the LA not more than two years and not less than 3 months prior to the adoption application.

• No prescribed consent to adoption had been provided by the birth father. It was a matter of very great concern that F saying he wanted T to continue in the care of his sister was translated in the Annex A report to him fully supporting an adoption order.

• ZH either needed to consent to the adoption or have her consent dispensed with and no consideration was given to her position other than a recital recording that ZH was said to be missing.

• Both parents, the LA and T should have been respondents to the adoption application but none of them were identified as parties.

• Neither parent was served with notice of the adoption application.

• The court failed to give any directions in relation to tracing either parent.

• The court did not join T and appoint a Guardian.

• No notice was given that the adoptive parents were inviting the court to dispense with one or both parents' consent and no statement of facts was directed.

• There was no record to suggest either parent or the LA was given notice of the final hearing, and there was nothing in the previous order that indicated the hearing was going to be a final hearing. At that date the LA had not gone through the Annex A report with HS and MO.

• The Annex A report was defective in numerous ways, including there being no current medical summary in respect of T, the medical assessments of HS and MO were outstanding, the DBS checks for HS and MO were outstanding, and the requirements to consider the relative merits of adoption and other orders was ignored.

Theis J considered the adoption order must be revoked. Many of the errors went to the very root of the adoption process, in particular notice to the birth family and consent. The errors tainted the entire process and Theis J was satisfied the adoption order was not lawfully or properly made.

Summary by Victoria Flowers, barrister, Harcourt Chambers

You can read the full judgment of ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam) on BAILII