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AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121

This case concerns the legal framework and circumstances in which an application under the inherent jurisdiction for the revocation of a lawfully made adoption order will be granted.

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A (aged 18) and B (aged 16) were adopted by Mr and Mrs X in 2011 following the conclusion of care proceedings which had concluded in 2010 with the making of care and placement orders.

However, since 2018, A and B had returned to live with their natural maternal family, the placement with Mr and Mrs X (the adoptive parents) having permanently broken down.

All parties agreed that the adoption order should be revoked. The Court considers the legislative framework and case law given the lifelong implications of the changes to the legal relationships of the people concerned.

The only statutory ground for the revocation of an adoption order (under Adoption and Children Act 2002, section 55) was not applicable in this case. The applications were therefore brought under the inherent jurisdiction, it being well established that the Court has the power to revoke adoption orders.

The Court observes the characteristic finality of an adoption order but notes that it is well established that it is not immune from challenge and this had not changed with the coming into force of the 2002 Act. However that finality is such that it is only in very limited circumstances that the Court will be persuaded to exercise its discretion to revoke the adoption order, that judicial discretion being "severely curtailed". The circumstances will be "exceptional and very particular".

The Court adopts the key principles as identified by Sir James Munby P in Re O (A Child)(Human Fertilisation and Embryology: Adoption Revocation) [2016] 4 WLR 148 

Three issues arose between the parties. First, what limitations, if any, are there in the categories of cases the court can consider whether to exercise its inherent jurisdiction to revoke an adoption order, second, whether welfare can play any part in the exercise of the court's discretion relating to the inherent jurisdiction to revoke an adoption order, and, third, the extent to which the court can exercise jurisdiction in relation to A who is now 18 years, although 17 at the time the proceedings were commenced.

Having reviewed the relevant case law, Theis J sets out the relevant legal principles at paragraph 80 and concludes that the discretion of the Court to revoke an adoption order is severely curtailed "each case will turn on its own facts, the highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to matters such as a fundamental breach of natural justice."

Welfare can, in appropriate cases be taken into account; this will vary depending on the particular circumstances of the case.

The jurisdiction to revoke the order did extend to an adult applicant.

Whilst no single factor was determinative, viewed as a whole the balance came down firmly in favour of revocation.

Case summary by Kieran Pugh, Barrister, Coram Chambers

For full case, please see BAILII