PK v Mr and Mrs K
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWHC 2316 (Fam) |
| Date | 31 July 2015 |
| Court | Family Division |
| Docket Number | Case No: FD14P00822 |
[2015] EWHC 2316 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: FD14P00822
Dennis Sharpe (instructed by Denise Lester of Moss Beachley Mullem and Coleman) for the Applicant
The Respondents did not appear and were not represented
Hearing date: 14 January 2015
After a brief hearing involving only oral submissions and consideration of written material filed on behalf the applicant, a further opportunity was afforded to the respondents to engage with the court process. The timeframe for their response was 14 days from the date of service of certain documentary material. After almost a month and in the absence of any contact from the respondents, an order was issued without a further hearing.
The order made under the court's inherent jurisdiction was highly exceptional and particular on its facts. It revoked an adoption order made more than 10 years ago; and provided for the applicant, a 14 year old young woman, to change her last name to that of her biological mother.
The legal framework – revocation of adoption orders
The legal framework in relation to revocation of adoption orders is well known. It stems from a series of Court of Appeal decisions notably Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 and more recently Re Webster v. Norfolk County Council and the Children (by their children's guardian) [2009] EWCA Civ 59. The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.
I could not improve upon Bodey J's analysis. He observed it was common ground that "the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances." Bodey J cited a passage from Re B(supra) where Swinton Thomas LJ said this – "To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order."
Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – "Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside."
It is also relevant to consider this extract from the leading judgment of the Court of Appeal in Re M (Minors) (Adoption) [1991] 1 FLR 458 referred to by Wall LJ in Webster v Norfolk County Council. Glidewell LJ emphasised the highly unusual nature of the case at 459 F-G: "In my view, this is … a classic case of mistake. It is quite clear that the present appellant was wholly ignorant of his former wife's condition and, had he known of it, he obviously would not have consented to the adoption. That ignorance vitiates his consent and means that it was of no effect. In the absence of that consent it is very doubtful whether the adoption order would have been made. Since it is clearly in the best interests of the children that the adoption order should be set aside, I would extend the time for both these appeals … and allow both appeals. I should say, as a postscript, that this is, if not unique, at the very least a wholly exceptional case. I say that because I do not want the setting aside of this adoption order in these circumstances to be thought of as being some kind of precedent for any related set of facts in some other case."
In the Re W case, having weighed the advantages and disadvantages, Bodey J came to the clear conclusion that he should refuse to invoke the inherent jurisdiction. He said this – "It is far less likely than likely that a revocation order would ultimately come to be made and the 'process' would stir up all the sorts of potential problems at the human level which I have tried to envisage. In short, it is a Pandora's box and the court should, in my view, only go there if it seems proportionate, necessary and reasonably likely to be ultimately successful. I do not think the application fulfils those prerequisites."
Change of name – key principles
The application by PK to change her name involves applying the well-known principles from three particular cases – Dawson v. Wearmouth [1999] 1FLR 1167; Re W, Re A, Re B [1999] 2FLR 930 and Re W (Change of Name) [2013] EWCA Civ 1488. On any application, the child's welfare is paramount. Each case must be decided on its own facts with the welfare of the child as the paramount consideration and all of the relevant factors weighed in the balance. As Ryder LJ said in the second Re W case, "the test is welfare pure and simple."
Essential background
The facts of this case are central to any determination. As relevant, they are as follows. PK was almost 4 years old when, in May 2004, an adoption order was made in favour of Mr and Mrs K. About two years later, in 2006, PK was sent to live...
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