Last week, the Court of Appeal heard yet another case where a birth parent was trying to get an adoption order set aside. The three children in Re I-A are, unusually but very fortunately, all living together in one adoptive family, following care and placement orders made in July 2019. There were findings in the care case attributing serious unexplained injuries, suffered by the middle child, to the parents.  The Court of Appeal case is not yet reported because the full judgment is awaited but you can watch a video of the livestreamed hearing.

As explained in earlier blog posts, the Adoption and Children Act 2002 (ACA) has provisions for a birth parent to apply for leave to revoke a placement order, before a child is actually placed, and to apply for leave to oppose an adoption order after the child has been placed. However, the bar is set high – the parent has to show there has been a change in circumstances that would mean it is better for the child not to be adopted. Notably, the Act does not envisage or make any provision for revoking or setting aside an adoption order, once made. However, another option exists for a birth parent to apply for permission to appeal, within a short time limit, against a placement order or an adoption order as having been wrong on facts or in law.

Last month, we wrote about an exceptional ‘set aside’ case here. That application had been made many years after the cut-off time for an appeal, because it was being driven by the teenage adoptees themselves. They sought use of the High Court’s inherent jurisdiction (IJ), which can be called on to protect children or vulnerable adults in situations where there is no legislation to cover the situation. We described the IJ, in a different context, as a ‘safety net’.

This appeal

Although the mother in Re I-A seems to have attempted every way she could to stop the adoptions, eventually her application to revoke placement and adoption orders was declared ‘totally without merit’ by Mr Justice Peel in December 2020 (i.e. she had no case at all). The adoption orders had been made by HHJ Booth on 6 April 2020, although a planned telephone hearing did not go ahead and the orders were made by the judge without any formal hearing. The mother did not appeal against this. However, some weeks later, she applied under the IJ to have the orders set aside on the basis of incorrect procedure.

The adoption orders had been made without the birth mother being given an opportunity to attend court on that date. Normally, in non-Covid times, birth parents are notified of the hearing date when the adoption order will be made. They may wish to attend. The attendance of the adoptive applicants can be dispensed with – adopters and children are often offered a later ‘celebration’ hearing.

There have been a very small number of successful cases on procedural impropriety involving non-notice and a substantial time delay but these had been quite different because those birth parents literally had not known about the adoption proceedings.

On 9 February 2021, despite Peel J’s rejection of the mother’s application in December, Lord Justice Baker gave her permission to appeal.

Two questions for the Court of Appeal

The mother’s advocate raised four question but we have summarised these in two.

  1. Did the fact that HHJ Booth had made the adoption orders without any hearing that the mother could attend, mean that the orders should be set aside as a procedural irregularity?

The mother’s advocate argued that the orders had not been properly made because the mother’s right to attend had not been observed and the judge had not considered the contact arrangements. On this latter point, Baker LJ checked that the judge had full details of the agreed letterbox contact arrangements in the court papers. He observed that the placement orders had been lawfully made in July 2019 and that these could only have been made if adoption was the best decision to be made in the children’s welfare. The ‘nothing else will do’ stage had been thoroughly explored in the placement application proceedings. The mother had also been refused ‘leave to oppose’ the placement orders. She tried to appeal this decision too, which the Court of Appeal had refused. Therefore, the Court also observed that the mother had a subsequent right to attend but no right to be heard when the adoption orders were made. If she had wanted to make an application for post-adoption contact, she could do this at any time under s 51A ACA 2002. Her only right on the date the adoption orders were made was therefore a right to be present, not to participate.

The Court of Appeal seemed to agree that nothing allowed a judge to make an adoption order “on the papers” but seemed less convinced that if this was procedural irregularity, it was so grave as to mean the children’s welfare would be better served by now (six months later and nearly two years since placement for adoption was decided) saying the adoption order were not valid. The mother’s advocate argued that the children’s rights to due process should carry greater weight than the Court of Appeal’s obligation under section 1 of ACA to make the children’s welfare (throughout their lifetimes) their paramount consideration. This was despite the fact, everyone seemed to agree, that had the mother been present, the adoption orders would have been made anyway, and there were therefore no consequences to the children of the irregularity.

The barrister for the local authority adoption agency emphasised that the mother had taken every opportunity to stop the adoption and that her rights to do so had not been compromised. The youngest child of the three had never known any other carers than her adopters and the distress and anxiety that would be caused to the three children and their adoptive parents ‘were not merited’ by this small irregularity (if there was one).

The barrister for the child (instructed by the Cafcass guardian) argued that the mother’s position had been well heard and that she had full legal representation throughout. The irregularity came nowhere near the seriousness of the type that meant an order should be set aside. There had been no breach of natural justice and the adoption orders (by December 2020) were inevitable. The court had always had all the relevant paperwork relating to the mother’s position at every stage.

2. Inherent jurisdiction   

Baker LJ described the ACA as being carefully calibrated to give birth parents rights at every stage to oppose care orders, placement orders and adoption orders. He was doubtful that a parallel process of going through the inherent jurisdiction could be right. He queried whether this process was being widely abused but the local authority barrister said that it was difficult to evidence because of the way records are kept and it was therefore impossible to say how many applications of this type were made. However she pointed out that the stability of adoptions could be thrown into chaos years down the line if the inherent jurisdiction increasingly appeared a viable option. She argued that use of the IJ should be confined to clearly exceptional cases where it had not been possible for the applicant to use the appeals procedure. She also pointed to the lack of legal aid for birth parents who wanted to appeal, leading to applications being made by litigants in person and the added uncertainty this could bring. Adoption agencies would not be able to confidently advise adopters, if possibilities of the unexpected use of the IJ existed.

Decision

After a break of about 20 minutes, the Court resumed with a briefly expressed decision that the appeal was dismissed. There had been an irregularity but this did not justify setting aside the orders. The judgment with reasons will be issued in due course.

The question of use of the inherent jurisdiction will, it is hoped, be answered in the full judgment, and the Court hinted that it may issue guidance within its judgment on the issues that this case highlighted.

Transparency

The mother’s advocate in this appeal made some interesting points about an adoption hearing needing to be a publicly accountable hearing in the sense that it should take place in a courtroom, although the rules mean it is held in private, with only parties and lawyers present. He said that a child had a right to know that such an important decision had been made about him in a thorough, regular and fair hearing.

In reality, however, although the making of adoption orders themselves are momentous to all concerned, the ACA was designed to ensure that the adoption route was as certain as it can be for prospective adopters once the children are matched after a placement order is made.

Image: Libreshot Free Images

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