Re B (Adoption: Jurisdiction to Set Aside)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE SIMON BROWN,THE MASTER OF THE ROLLS |
| Judgment Date | 17 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0317-3 |
| Docket Number | FAFMF 94/0749/F |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 1995 |
[1995] EWCA Civ J0317-3
(The President, Sir Stephen Brown)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Simon Brown Lord Justice Swinton Thomas
FAFMF 94/0749/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION
MR. A LEVY QC & MR T COMPTON (Instructed by Messrs. White & Sherwin, Surrey) appeared on behalf of the Appellant
MR. J HOLMAN QC, Amicus Curiae was instructed by The Official Solicitor)
Friday 17 March 1995
This is an Appeal from a decision of the President, Sir Stephen Brown, of the 29th April, 1994, whereby he refused an application by the Appellant, Mr Jonathan Bradley, to set aside an Adoption Order made in respect of him on the 20th July 1959. The Adoption Order was, therefore, made more than 35 years ago. The Appellant was born on the 8th March 1959, and is now aged 36. His natural mother is now married. She is English and at the material time she was a Roman Catholic. The father was and is an Arab from Kuwait and by religion Muslim. The mother and the father were not married, and in 1959 he knew nothing of the adoption or indeed of the pregnancy. Nothing turns on his ignorance. The prospective adoptors were Sydney and Bessie Rosenthal who were both Jewish. Bessie Rosenthal was born on 4th January 1911 and Sydney Rosenthal on 25th October, 1913. They married on 7th November 1948.
After Jonathan's birth on 8th March 1959, his mother wished to place him for adoption. In 1959 the attitude of society generally towards unmarried mothers and illegitimacy was somewhat different from the general attitude today. The mother was, for natural reasons, anxious that the arrangements for the adoption should take place in a part of the country where she was not known and, insofar as it was possible, anonymously. On the advice of a Priest she made contact with the Doris Court Nursing Home in Manchester where the Matron was a lady called Miss W. Doris Court was mainly a nursing home, but it was also known that unmarried mothers could go to the home and receive help regarding the birth of their babies, and, if they wished, Miss W would make arrangements for the baby to be placed for adoption. In 1959 there was less formality in relation to adoptions than there is today. However, the Children's Department of the Local Authority were given proper notice of the proposed adoption, and a Miss Crossthwaite was appointed as Guardian ad Litem. There is no suggestion, and certainly no evidence, that Miss W was motivated other than by a desire to serve the best interests as she saw them of the babies in her care and prospective adopters. There is evidence that no money changed hands.
The mother left Jonathan at Doris Court on 27th March, 19 days after his birth. There is some confusion as to when Jonathan was circumcised and a point is taken as to what was said and done by Miss W in relation to his circumcision. There is a document dated 4th April, 1959 which was signed by Miss W and states:
"This is to certify that Baby Isaac (Ian) Rosenthal, son of Mr and Mrs Sydney Rosenthal, of 52 Portmann Road, Liverpool 15, was circumcised on 17/3/59 in accordance with the Jewish faith.
The operation was performed by Dr R. Friedlander."
Certainly that date must be wrong and misleading because Jonathan and his mother did not arrive at the nursing home until 27th March.
In an Affidavit sworn on 17th June 1993, Jonathan's mother said that she told the Nursing Home that Jonathan's father came from the Persian Gulf area, and that he may have come from a Gulf State. She says that she did not give them the name of Jonathan's father, and never indicated that the father was Jewish. She says that if she had known that Jonathan was to be placed with a Jewish family she would have had serious reservations. She says that she would also have had reservations if she had known that Jonathan was to be placed with working class parents. She had been led to believe that he was going to middle class parents and she wanted him placed with an educated family. She says that she would also have had reservations about the placement had she known of the age of the adopters. She thought they were in their 30's. She feels that she was misled. It is, perhaps, relevant to note that in that Affidavit the mother states that she would have had a number of reservations in relation to this particular placement. She says that she did not say that the father was of Syrian/Jewish stock. Jonathan was placed with Mr and Mrs Rosenthal on 4th April 1959. On the adoption application they gave their dates of birth as 1916 and 1917 as opposed to their correct dates of birth, 1913 and 1911. It would have appeared that they were aged 45 and 48 as opposed to being 48 and 53. There can be no doubt that Mr and Mrs Rosenthal thought that the father of the baby was Jewish. On 27th May 1959, the adopters issued their Originating Application for an Adoption Order. On 16th July the Children's Officer filed his Report. Amongst other things he said:
"The Applicants are overjoyed with the infant, who has thrived in every way since his placing on 4th April, as can be expected from all the love and care bestowed on him"
On 20th July 1959, His Honour Judge Fraser-Hanson made the Adoption Order in favour of the adoptive parents, the subject matter of the present Application.
In 1968 the Rosenthals discovered that Jonathan was not Jewish and this came as a considerable shock to them. This came to light as a result of enquiries being made by the Beth Din. Contact was made with Miss W and contemporaneous Memoranda of conversations with her show that in 1968 she said that the mother was not Jewish and that the father was a Jewish boy called David Bloom. Clearly those statements were incorrect. The Rosenthals indicated that Miss W. had told them that Jonathan was Jewish and said that if they had not believed that he was Jewish they would not have had him. They had brought him up as a Jew in the Jewish tradition and he had done exceedingly well. Clearly, they felt that they had been badly misled. Miss.W. replied that she did not consider that the Rosenthals had been misled as she had told them that the baby was half Jewish, having a Jewish father.
Although the information received by the Rosenthals came as a shock to them, far from taking steps to set aside the Adoption Order, they continued to care for Jonathan as their son and he was received into the Jewish Faith and community on 31st March 1970. It is true that they were not then in possession of the full facts, in particular that the father was a Muslim Arab. Nonetheless it is my view, and it may have relevance to the present application, that had the Rosenthals applied to set aside the Adoption Order following the information that they received in 1968, they would have had no prospect whatsoever of doing so. Equally the mother, had she been appraised of all the facts in 1968, would have had no prospects of setting the Order aside, then, let alone in 1994. The Order had been made and the mother had been given proper notice of the proceedings. Jonathan had by then been living with the Rosenthals for 11 years as their adopted son and misinformation given to them, whether innocently or deliberately, as to the religious background of the baby could not, in my view, have amounted then to a ground for setting aside the Order made on the 20th July 1959. In the event, far from attempting to set aside the Order, they approbated it, and continued to bring up Mr Bradley as their son.
Having been received into the Jewish Faith on 31st March, 1970, Mr Bradley continued to be brought up in that faith. In 1983 he graduated from Leeds University with a degree in Semitic Languages and Literature. In 1978 he began to make some enquiries about his background. In 1986 he decided to emigrate to Israel, and he at once ran into difficulty. People in Israel assumed that he was an Arab. He was suspected of being a spy. He was asked to leave and return to this country. He was then told that he was persona non grata in Israel. He continued his researches into his background. On 13th April 1988, Sydney Rosenthal died, and Bessie Rosenthal died on 28th February 1991. On the death of his adoptive mother he was bequeathed a legacy of £10,000. In about 1989 Mr Bradley traced his natural mother. He then made contact with his father who, as I have said, is a Kuwaiti National living in Kuwait. The present position undoubtedly causes Mr Bradley very considerable hardship, as he says in his Affirmations. He wants to work in the Middle East and is qualified to do so. It is extremely difficult, if not impossible, for him in his present position to obtain work or even visit Israel or any Arab country. He feels this acutely and feels that he does not belong now to either the Jewish or the Arab community. It is in those circumstances that he applied to set aside the Adoption Order of 27th July 1959.
In my judgment such an Application faces insuperable hurdles. An Adoption Order has a quite different standing to almost every other Order made by a Court. it provides the status of the adopted child and of the adoptive parents. The effect of an Adoption Order is to extinguish any parental responsibility of the natural parents. Once an Adoption Order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an Adoption Order has been made the adopted child ceases to be the child of his...
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