AX v SX
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWHC 1121 (Fam) |
| Date | 2021 |
| Court | Family Division |
Adoption - Adoption order - Revocation - Application by two children to revoke adoption order in circumstances where adoption placement broken down and children returning to live with birth mother - Adoptive parents acknowledging breakdown of placement and consenting to application - Whether inherent jurisdiction of High Court to revoke adoption order limited to specific categories of cases - Whether welfare considerations relevant to discretion to revoke adoption order under inherent jurisdiction - Whether order to be revoked -
An adoption order was made in respect of two children who were then aged eight and six. The placement with the adoptive parents proved difficult from the outset, with concerns raised that the youngest child was beyond parental control and, after a number of years, both children had located and were having contact with their birth mother without the adoptive parents’ knowledge. The relevant local authority intervened initially to formalise the contact but shortly thereafter the relationship between the children and the adoptive parents broke down and both children returned to live with their birth mother under the terms of an interim care order, which was subsequently formalised by way of a child arrangements order with the adoptive parents’ consent. Proceedings were commenced, on the children’s application, for the revocation of the adoption order. As the only statutory ground for revocation, under section 55 of the Adoption and Children Act 2002F1, did not apply to the circumstances issues arose as to the ambit and limitations of the inherent jurisdiction of the High Court. In particular, while supporting the revocation of the adoption order, the adoptive parents contended that the circumstances in which an adoption order could be so revoked were limited to a failure of natural justice (such as a natural parent not being informed, vitiated consent or a flawed adoption procedure) and fraud. Further concerns were raised over whether welfare considerations could play any part in the exercise of the court's discretion relating to the inherent jurisdiction to revoke an adoption order and the extent to which the court could exercise jurisdiction in relation to the older child who was now aged 18 years, although she had been 17 at the time the proceedings were commenced.
On the application to revoke the adoption orders—
Held, granting the application, that (1) the authorities did not place a limit by categories of cases where the court would exercise its inherent jurisdiction to revoke an adoption order so as to exclude considerations of welfare; that the starting point, however, was the clearly set out lodestar provided in the authorities that the court's discretion under the inherent jurisdiction to revoke a lawfully made adoption order was severely curtailed and could only be exercised in “highly exceptional and very particular circumstances”; that the authorities provided examples of when, on the very particular facts of the case, that discretion had and had not been exercised but each case was highly fact dependent; that there was no exhaustive category of cases where the court could exercise its discretion, although the authorities made clear the very steep hill that had to be climbed and why; that the submission that welfare could play no part in the exercise of the court's discretion was incorrect and the authorities demonstrated that it clearly had been taken into account, to a greater or lesser extent, depending on the circumstances of the case; that such an approach was not inconsistent with section 1(7) of the Adoption and Children Act 2002, which expressly included welfare considerations in applications to revoke an adoption order and, although it was not necessary to determine here whether welfare in the exercise of the court's inherent jurisdiction ought to be specifically guided by the statutory framework for welfare, as set out in section 1 of the 2002 Act, it ought not to be inconsistent with it (post, paras 76–77, 78).
(2) That the court was not prevented from exercising its jurisdiction due to the older sibling being 18 years old, so no longer a child, and nor did her age prevent the court from considering any aspects of her welfare; that there was nothing in the authorities to which the court had been referred that limited such applications to children and it was too prescriptive within the present jurisdiction in relation to that type of application to say that welfare considerations simply did not apply once a person had attained the age of 18 years; that the relevance or weight to be given to welfare depended on the circumstances of the case but the court could consider welfare considerations so far as was relevant within the applicable principles for this type of application; that the suggestion that if the court took that approach welfare would dominate the outcome failed to take account of the nature of the jurisdiction being exercised and, in particular, the balancing exercise that the court was required to undertake in exercising its discretion; and that, accordingly, having regard to the principles outlined above, together with the pertinent considerations arising in the present case, in the highly exceptional and very particular circumstances here the adoption orders made in relation to the two children were to be revoked (post, paras 79, 81, 82).
Summary of relevant legal principles concerning the revocation of an adoption order (post, para 80).
APPLICATION
On 4 August 2011 adoption orders relating to the two applicant “children”, AX and BX, were granted to the adoptive parents, SX and JX. Some years later the placement broke down and the children returned initially to live with their birth mother, CT. In February 2020 the children, then aged 18 and 16 respectively, applied under the inherent jurisdiction of the High Court to revoke the adoption order. The local authority (the responsible authority at the time the adoption orders were made) was joined to the proceedings. Cafcass Legal were appointed as advocate to the court where it was said that in the absence of a statutory ground for revocation under the Adoption and Children Act 2002, and although there was no dispute between the parties that the adoption order should be revoked, there remained some issues about how the court ought to approach the relevant legal principles arising from the authorities.
The judgment was delivered in private and is reported with leave of the judge on the basis that the anonymity of the parties be strictly preserved.
The facts are stated in the judgment, post, paras 1–7, 15–28.
Deirdre Fottrell QC and Sally Bradley (instructed by Powell Spencer & Partners) for the children.
Richard O’Sullivan and Alexander Laing (instructed by Alexander & Partners Solicitors) for the adoptive parents.
Tom Wilson (instructed by Goodman Ray Solicitors) for the birth mother.
Kate Tompkins (instructed by Head of Legal Department) for the responsible local authority at the time the adoption orders were made.
Kathryn Cronin and Christopher Osborne (instructed by Cafcass Legal) as advocate to the court.
The court took time for consideration.
23 April 2021. THEIS J handed down the following judgment.
Introduction and summary1 This matter concerns an application by A, 18 years, and B, 16 years, under the inherent jurisdiction to revoke adoption orders relating to them granted on 4 August 2011 to SX and JX.
2 The other parties to the application are SX and JX, CT (A and B’s natural mother) and the local authority (responsible authority at the time the adoption orders were made, “the first local authority”).
3 At an earlier stage in the proceedings another local authority (“the second local authority’) were given notice of these proceedings. They were the local authority responsible for providing the support under the adoption support plan and the applicant in the care proceedings issued in relation to A and B in 2018, which concluded in September 2019. They provided disclosure of documents but did not seek party status.
4 Since the autumn 2018 both A and B have been back living with the natural maternal family. A and her son, born in 2020, live with CT and her three younger children. B had been staying with CT’s aunt, although spending time with CT. It is accepted the placement with Mr and Mrs X has permanently broken down, neither A or B have lived with them since autumn 2018, with only A having limited contact with them since then.
5 Although there is no dispute between the parties that the adoption order should be revoked, there remain issues about how the court should approach the relevant legal principles. As a consequence, the court invited Cafcass Legal to act as Advocate to the court. This invitation was accepted and the court and parties have benefited from the clarity and analysis they have brought to the issues in the case.
6 This case has had the benefit of expert specialist representation with the consequence the written skeleton arguments and oral submissions have been of the highest quality. Mr O’Sullivan and Mr Laing have represented Mr and Mrs X pro bono, for which the court is extremely grateful, as it has ensured Mr and Mrs X have had the benefit of legal representation.
7 The hearing was largely taken up with legal submissions, although the court heard oral evidence from A and Ms N.
8 It is important for the court to recognise that behind the detailed legal submissions in this case the outcome of the application will have very significant consequences for A, B, CT and Mr and Mrs X. If granted, the order to revoke the adoption orders will change in a lifelong...
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