Re B (Adoption order: Jurisdiction to set aside)
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 1995 |
| Date | 17 March 1995 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Sir Thomas Bingham, Master of the Rolls, Lord Justice Simon Brown and Lord Justice Swinton Thomas
Adoption - jurisdiction to set aside order
The court had no inherent power to set aside an adoption order, which had been made regularly and in accordance with the proper procedure, on the ground that at the time the order was made there had been a fundamental misapprehension that a Jewish baby was being placed with Jewish adopters.
The Court of Appeal so held when dismissing B's appeal from the refusal by Sir Stephen Brown, President of the Family Division, of his application to set aside an adoption order made in respect of him in 1959.
The applicant was adopted shortly after his birth by a Jewish couple who believed his natural father to be Jewish. In fact the applicant's father was a Muslim Arab. His natural mother, who was English, subsequently stated that she had been led to believe her son would be placed with middle class parents, and would have had serious reservations if she had known that the prospective adopters were a working class Jewish couple. In 1968 the adoptive parents learned that B was not Jewish and continued to care for him as their son. As an adult he had discovered his parentage. He now wished to work in the Middle East but it was extremely difficult for him to do so or even to visit Israel or any Arab country.
Mr Allan Levy, QC and Mr Timothy Compton for B; Mr James Holman, QC, as amicus curiae.
LORD JUSTICE SWINTON THOMAS said that B's application faced insuperable hurdles. An adoption order had a quite different standing from almost every other order made by a court: it provided the status of the adopted child and of the adoptive parents; its effect was to extinguish any parental responsibility of the natural parents.
Apart from section 52 (revocation on legitimation) and section 53 (annulment of overseas adoptions) of the Adoption Act 1976 there were no other statutory provisions for revoking an adoption order which had been validly made. Accordingly, Mr Levy had been compelled to submit that the court had inherent power to set aside an adoption order where, as he put it, the order had been made under a fundamental mistake of fact.
His Lordship referred to cases where orders had been set aside for what was known as procedural irregularity: where there had been a failure to effect proper service of the proceedings...
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