Legal Principles

Adoption in England and Wales is entirely a creature of statute and is governed by the Adoption and Children Act 2002 (‘ACA 2002’) which does not contain any express provision permitting the court to revoke an adoption order on welfare grouds.

A placement order may only be made under s.21 ACA 2002 where the ‘significant harm’ threshold is met and each parent consents or where the parents’ consent should be dispensed with under s.52 of the Act.

The paramount consideration for adoption is outline in s.1 ACA 2002:

‘(1) Considerations applying to the exercise of powers

(2)  The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

By s.47 ACA 2002, an adoption order is an order made by the court on an application under s.50 or s.51 giving parental responsibility for a child to the adopters or adopter.

The unique status conferred by an adoption order, as opposed to other orders the Family Court may make, is laid out in s.67 of the Act:

’67 Status conferred by adoption

1. An adopted person is to be treated in law as if born as the child of the adopters or adopter
2. An adopted person is the legitimate child of the adopters or adopter and, if adopted by—
   1.  a couple, or
   2.  one of a couple under section 51(2), is to be treated as the child of the relationship of the couple in question.
3.  An adopted person—
   1.  if adopted by one of a couple under section 51(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple, and
   2.  in any other case, is to be treated in law, subject to subsection (4), as not being the child of any person other than the adopters or adopter; but this subsection does not affect any reference in this Act to a person’s natural parent or to any other natural relationship.

Unlike a placement order which can be revoked under s.24 ACA 2002, the ACA 2002 does not make any provision for revoking an adoption order bar the exceptions of s.55 by marriage of natural parents and s.46(5) by making a further adoption order.
The Court of Appeal considered how the focus of the ACA 2002 makes it clear that an adoption is intended to be life-long and natural family relationships are extinguished so that ‘it is as if the adopted child had been born to their adopter.’
The statutory scheme for adoption reflects the fact that there is no legal mechanism for a natural parent or child to have the parental bond between them extinguished. The only legal gateway out of such a bond is through adoption and that already applies to cases of adoption under s.46(5)A ACA 2002.
The Court of Appeal determined that two principles that had been applied by various High Court cases in recent years were not correct, namely

1. That the High Court has an inherent power to revoke an adoption order in ‘exceptional and every particular circumstances’,
2. Neither the High Court nor the Court of Appeal has excluded the child’s welfare from being a consideration that can be determinative in an application for revocation.

The Court of Appeal determined that the key authority in this area remains to be Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, [1995] 3 All ER 333, [1995] 3 WLR 40 – CA where Swinton Thompson LK stated:

– 337e – ‘Unlike certain other jurisdictions, there are no other statutory provisions for revoking a validly made adoption order. Parliament could have so provided if it had wished to do so.’
– 340g – “There may be many reasons, indeed good reasons, for an adoptive parent or an adoptive child subsequently to regret the adoption order that had previously been made… 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.”

Re B also concludes that the child’s welfare can be taken into consideration when the court is exercising its discretion as to whether to grant permission to appeal out of time but crucially, adoption orders cannot be set aside on welfare grounds.
The dicta in Webster cannot be relied upon as those powers do not apply to the High Court.

‘There may nevertheless be very narrow and specific instances in which the High Court finds it necessary to entertain an application to revoke an adoption order, but they will only arise where for some reason an appeal, in or out of time, is not possible’.

There may also be cases where the court can use Family Procedure Rules 2010, in particular FPR 27.5 to correct a position where an order has been made in a party’s absence and an applicant applies for the order to be set aside in relation to adoption orders, but this does not amount to exercising inherent jurisdiction.

Legal Principles

No-fault divorce was brought in by s.1(1) of the Divorce, Dissolution and Separation Act 2020 which inserted the sole ground that the marriage or civil partnership has broken down irretrievably.

After 20 weeks from the conditional order and in accordance with rule 7.9:

4. (4) An application under this rule must be accompanied by a statement
   1. stating whether there have been any changes in the information given in the application.
   2. confirming that, subject to any changes stated, the contents of the application are true; and
   3. where the acknowledgement of service has been signed by the other party to the marriage or civil partnership, confirming that party’s signature on the acknowledgment of service.

The court will then check the application and certify that the applicants are entitled to a conditional order.

6 weeks after the making of the conditional order, the applicant can give notice to the court for the conditional order to be made final FPR 7.19.

Where the notice is not received by the court until after 12 months of the making of the conditional order, it must be accompanied by an explanation in writing as to why the application was not made at an earlier stage (FPR 17.9(5)).

An order may be set aside where:

Rule.7.34 Either party to the marriage or civil partnership concerned may apply

1. after the conditional order has been made but before it has been made final; or
2. after a judicial separation order or separation order has been made; for the recission of the order on the grounds that the parties are reconciled and both consent to the recission.

The court considered the dicta in Savage v Savage [1982] Fam 100 where the period of 12 months of reconciliation in Rule 65 of the Matrimonial Causes Rules 1977 was notes and that periods of more than 12 months are ones to which the court has a discretion.