Re X and Y (Revocation of Adoption Orders) [2024] EWHC 1059 (Fam)

Timothy Bowe KC and Mark Cooper-Hall represented the children and Elisabeth Richards represented the birth mother in this unusual and significant case before Mrs Justice Lieven. The children’s adoptive mother had made an application to revoke the adoption orders in respect of the children she had adopted several years ago. These applications rarely succeed, given the permanency associated with an adoption order. The legal test, endorsed in other reported cases by the High Court and the Court of Appeal, is essentially that the circumstances need to be exceptional.

The purported exceptional circumstances of this case included the facts that (i) the adoptive mother herself was seeking revocation, (ii) the children supported the application; and (iii) the children had been living with their birth mother for some time, the older child in particular. The adoptive placement had an unusual history, in that the adoptive mother had allowed the children to have direct contact with their birth mother from an early stage, in an attempt to stabilise the placement.

The application was supported by the birth mother and the children. However, the guardian opposed the application (having separated from the children), and the local authority supported the application in respect of one of the children and not the other. There was also an application on behalf of the children to change their surname to their birth mother’s surname, with whom they were living.

Mrs Justice Lieven declined to invoke the Inherent Jurisdiction and refused the application. The decision was made on the basis that there was a pre-existing statutory scheme for revocation of adoption orders, albeit limited to cases of legitimisation, and thus Her Ladyship determined that the Inherent Jurisdiction could not be used as a springboard to fill gap in the legislation (the Adoption and Children Act 2002).

Mrs Justice Lieven declined to follow the decision of Mrs Justice Theis in AX v BX & Ors (Revocation of Adoption Order) [2021] EWHC 1121, in which Theis J had found exceptional circumstances based on matters of welfare. Recognising that the Court of Appeal had approved the use of the Inherent Jurisdiction in revocation applications, Lieven J observed that those were all cases where there had been a breach of natural justice or other administrative/procedural error, and not cases where the child’s welfare had been central to the exceptional circumstances.

The application by the children for permission to change their name was granted. Lieven J also indicated that the adoptive mother’s would have been allowed purely on welfare grounds, had Her Ladyship been satisfied that the Court had the power to do so.

The full judgment can be read here.