username

password

Established
Family Law Week Email SubscriptionHousing Law WeekAlphabiolabsBerkeley Lifford Hall Accountancy Services

Home > Judgments

I-A (Children) (Revocation of Adoption Order) [2021] EWCA Civ 1222

Court of Appeal dismisses a mother’s appeal against an order dismissing her application to revoke adoption orders. The procedural irregularity in the making of the adoption orders did not amount to a fundamental breach of natural justice so as to give the High Court a discretion under the inherent jurisdiction to revoke the order.

___

Background

Care and placement orders were made by HHJ Booth in June 2019 in respect of three children.  Permission to appeal was refused.

Adoption applications were issued.  The parents' applications for leave to oppose the adoptions were refused in February 2020. Permission to appeal was refused in March 2020.

The adoption application was listed for hearing on 6 April 2020.  Mother was given notice of the hearing.  Mother's application by email for an adjournment to allow more time to investigate options for family placements abroad was refused. 

On 1 April 2020, the adoption social worker sent the mother a text informing her that due to COVID19, the hearing would take place by telephone.  Later that day, the social worker sent another text informing the mother that HHJ Booth had excused all parties from attending the hearing and there would be no telephone hearing.  The adoption orders were made on 6 April 2020. 

Revocation application

On 21 July 2020, the mother applied under the inherent jurisdiction for revocation of the care and placement orders and/or the adoption orders.  The mother relied upon serious procedural irregularity and unfairness. Members of the wider family applied to be joined to the proceedings to seek assessment.  

Mother submitted that the failure to hold a full hearing was in breach of Article 6 and so unjust as to nullify the entire process.  Pursuant to FPR 14.3, the mother was a party to the adoption application and entitled to notice of the hearing under FPR 14.15. Under FPR 14.16(1), she was entitled to attend the hearing but under rule 14.16(2), as her application for leave to oppose the adoption had been refused, she was not entitled to be heard on the question of whether an order should be made.  [Mother had not made any application for post-adoption contact].

At the final hearing on 18 December 2020, Peel J dismissed the mother's applications and the application by the family to be joined.  He concluded that FPR 14.16 provided a knockout blow to the mother's case. She had no right to be heard on the final adoption order.  He determined the judge was entitled to excuse her attendance.  If she was dissatisfied, the mother should have appealed. 

Appeal

Baker LJ granted permission to appeal the dismissal of the mother's application to revoke the adoption orders on two grounds only: that Peel J had misdirected himself or erred in law in holding that (i) FPR 14.16 provided a 'knock out blow' to the mother's application and (ii) HHJ Booth was entitled to excuse her attendance at the final adoption hearing. 

Baker LJ gives the lead judgment. He quotes with approval the principles set out by MacDonald J in HX v A Local Authority and others (Application to Revoke Adoption Order) [2020] EWHC 1287 (Fam) in respect of the power of the High Court to revoke an adoption under the inherent jurisdiction.  The Court's discretion under the inherent jurisdiction to revoke a lawfully made adoption order can only be exercised in highly exceptional and very particular circumstances. Those circumstances must comprise more than mistake or misrepresentation or serious injustice: they should amount to a fundamental breach of natural justice.

Adoption changes a child's status and identity.  The process by which it happens is governed by rules which must be strictly followed.  An adoption order must be made at a hearing, not merely by the stroke of the judge's pen. 

The decision to make an adoption order without a hearing in the absence of the mother was a procedural irregularity.  The plain meaning of FPR 14.16(1) is that the mother was entitled to be present at the hearing.  It was not a question of HHJ Booth excusing her attendance. In any event, he cancelled the hearing altogether.  While an unopposed adoption hearing may be conducted remotely, there is nothing in the case law or guidance to justify the course taken by HHJ Booth. 

However, the irregularity did not amount to a fundamental breach of natural justice so as to give the High Court a discretion under the inherent jurisdiction to revoke the orders. As the mother did not have permission to oppose the adoption, there was nothing she could have done to prevent the adoption. The court was required to consider contact arrangements [s.46(6) ACA 2002], but the mother was not having direct contact and had not sought leave to make an application under s.51A. In respect of contact, the mother's position is unchanged: she may still apply for leave to bring an application for contact.

Baker LJ further observed that the better course in these circumstances would have been to seek permission to appeal.  If an adoption order is to be set aside, the applicant should bring proceedings swiftly once the fact of the irregularity is known. In this case, the mother knew about the irregularity before the order was made and it was incumbent upon her to bring any challenge as soon as possible.  

Appeal dismissed.

Summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII