Re X and Another

25 April 2024. LIEVEN J handed down the following judgment.

1 This is an application to revoke an adoption order in respect of two children, X and Y, aged 17 and 16 respectively. The application is made by their adoptive mother, AM. I note that both girls have been assessed as being Gillick competent, and were represented separately from the guardian.

2 The applicant adoptive mother, AM, was represented by Mr Dorian Day and Ms Samantha Smith, the birth mother, BM, was represented by Ms Elisabeth Richards, the birth father was not represented and did not attend, the children were represented by Mr Timothy Bowe KC and Mr Mark Cooper-Hall and the local authority (“the LA”) were represented by Mr Nick Brown. The guardian was present and acting in person.

3 The issue in the case is whether I should accede to AM’s application to revoke the adoption orders. That in turn raises two sub-issues; whether I have power to revoke in these circumstances, and if I do have the power, whether I should choose to exercise it in respect of one or both children. The primary argument put forward by Mr Day is that there is a power to revoke under the inherent jurisdiction of the High Court, but in the alternative, he submits that there is a power to revoke an adoption order in section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (“MFPA”).

4 There is a subsidiary issue as to whether I should allow the girls to change their name to BM’s surname, so that it aligns with their birth mother’s name.

5 X and Y were placed for adoption at the conclusion of public law proceedings in 2010. Care orders and placement orders were made on 12 August 2010 and both children were placed with AM on 6 August 2012 when X and Y were just over five and four years old respectively. It is relevant that the children had spent a prolonged period in foster care, in at least two placements, during which they had significant contact with their birth mother, BM.

6 AM’s statement in support of her application discloses a picture in which both children struggled with being in an adopted placement, with them having little understanding as to why they could not spend time with their birth family. AM describes difficulties with managing the children’s behaviour from a very early stage of the placement. AM decided that the children should spend time with their birth mother, BM, and extended birth family, following a programme of Therapeutic Life Story Work. This unusual situation resulted in the girls calling BM “mummy B” and AM being called “mummy” or “mum”. AM states that from this point on, X felt more settled in her care and it “felt like she was finding the missing pieces of who she was”.

7 AM says that in the period between 2017–2019 X was saying she wanted to live with BM, although Y was clear she wanted to remain with AM. Therefore, from quite an early stage there has been a difference in the position of the girls in this regard.

8 At the time of the adoption BM had a third child, Z, who was placed to live with his maternal grandmother under a special guardianship order. Z returned to live with BM in September 2015. BM then had two more children, with a different father, who have lived with her throughout.

9 During 2020 AM allowed BM and her youngest children to move in with her and the girls during...