An adoption order made by a court in England and Wales is normally irreversible, once the time limits for appeal have passed. This premise will be under scrutiny in October, when a re-hearing of an earlier fact-finding family court decision is scheduled.
In a case heard in April and May but published just last week, Re X  EWHC 1342 (Fam), the President of the Family Division, Sir James Munby, gave permission for a full re-hearing of the original allegations made in care proceedings in 2012 involving an injury to child, now aged four, who was adopted in 2015. The problem that has since arisen is that the criminal proceedings brought against the parents, later in 2015, were dropped part-way through the trial. The trial judge directed that the parents be acquitted, as there was no case to answer. The standard of proof in a criminal case is of course higher than in a family case, but the parents now want that family case overturned. This is understandable, because if they want to have more children, or to work with children in the future, the family court finding will still say they pose a risk. However, their barrister told the President that if they were successful at the re-hearing, they would go on to challenge the adoption itself.
So, can an adoption ever be undone? There are only a handful of reported cases on this. (The older ones are not on BAILII.)
1. In 1991, a father was granted leave to appeal out of time against the adoption of his children by their step father with the mother, because he had agreed to the adoption without knowing that his ex-wife was terminally ill. After her death, the children returned to live with their father. The court here decided that his consent had not been valid, and the orders were set aside. (Re M (Minors) (adoption)  1 FLR 458 CA)
2. In 1995, a 35-year-old man discovered that his birth father was of Muslim origin although he had been adopted and brought up as Jewish. He encountered suspicion when he wanted to settle in Israel and applied to set his own adoption aside. The Court of Appeal did not agree, saying the court had no power to do this, in the absence of any procedural irregularity or mistake. (Re B (Adoption: Jurisdiction to set aside)  Fam 239 CA)
2. In 1997, an orphan from Bosnia was adopted in England by foster carers, although she still had close relatives who were alive and wanted to care for her. The proceedings here were found to be flawed, as the judge had not made any direction to try to trace any relevant family or services in Bosnia. The adoption order was set aside as it had been made in breach of natural justice, because a party who should have been heard had not been notified. (Re K (Adoption and Wardship)  2 FLR 221 CA
3. More recently, in 2009, Mr and Mrs Webster famously applied for permission to appeal out of time against adoptions of their three oldest children. This was because there was later doubt about the medical evidence in the care proceedings. In the Court of Appeal. Sir Nicholas Wall said:
‘In my judgment, however, the public policy considerations relating to adoption, and the authorities on the point – which are binding on this court – simply make it impossible for this court to set aside the adoption orders even if, as Mr and Mrs Webster argue, they have suffered a serious injustice.
This is a case in which the court has to go back to first principles. Adoption is a statutory process. The law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once orders for adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.’
4. In Re W  EWHC 1957 Fam, a different type of situation had arisen. A local authority asked the High Court to use its inherent jurisdiction to set aside an adoption order that had been made nine years ago, because the arrangements had broken down. The judge refused, explaining that:
‘Balancing the advantages and disadvantages, I have come to the clear conclusion that I should refuse leave to invoke the inherent jurisdiction. It is far less likely than likely that a revocation order would ultimately come to be made and the ‘process’ would stir up all the sorts of potential problems at the human level which I have tried to envisage. In short, it is a Pandora’s box and the court should in my view only go there if it seems proportionate, necessary and reasonably likely to be ultimately successful. I do not think that the application fulfils those pre-requisites.
The fact is that G is doing very well at the foster placement, a placement which may, if the [new] care proceedings are concluded sooner rather than later, be consolidated and made permanent for her. If everything is well explained to her by the social worker in child-appropriate language, it may well be that this whole issue will naturally resolve and that, like any non-adopted child removed from her parents to other carers, G will gradually settle down in her new environment. There must be a reasonable expectation that this is actually what will happen once the litigation process is withdrawn from her life.’
5. However, in the recent case of PK v K, a 14-year-old girl herself wanted to reverse an adoption that was based on a private agreement, having been abused by the relatives who adopted her when she was four, and subsequently returning to live with her mother. The adopters took no part in these proceedings. The judge, Pauffley J, pointed out that all adults in the case were fully informed, the girl was happily settled with her mother, and:
‘… against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.
The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.’
So it can be seen from this brief review of the cases that the court will be looking closely at the individual child’s welfare in balancing any policy factors.