In June this year, the Court of Appeal heard an application by a mother that the court use its powers under the inherent jurisdiction to set aside adoption orders made in April 2020, in respect of three children. The judgment in this case has now been published as Re I-A (Revocation of Adoption Order) [2021] EWCA Civ 1222  One of the children had been seriously injured by their parents; they have been living with their adopters since spring 2019.

We explained the basis of the mother’s application in our blog post on 24 June

The Court announced its decision briefly at the end of that hearing – that the mother’s appeal failed because a procedural irregularity that had occurred in respect of an earlier hearing was not serious enough to be a fundamental breach of natural justice that would require a court to set aside the orders.

In our blog post, we had identified a second question before the court, about the use of the inherent jurisdiction to try to get adoption orders set aside once the time for appeal has passed. We summarised this as follows:

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.

We had therefore expected the judgment to tackle this question. Surprisingly, in view of the broad discussion in the hearing about the inherent jurisdiction, Baker LJ says at the outset, ‘the issue arising in this case is narrow’ [Para 2]. He does not give any specific new guidance about the use of the inherent jurisdiction but instead cites a High Court case, HX v A Local Authority and others (Application to Revoke Adoption Order) [2020] EWHC 1287 (Fam), where MacDonald J said:

… the courts discretion under the inherent jurisdiction to revoke a lawfully made adoption order is severely curtailed and can only be exercised in highly exceptional and very particular circumstances.    

At para 21, Baker LJ says:

Ms Cheetham [lawyer for the local authority] further argued that, in the event of a procedural irregularity, the proper course would have been to apply for permission to appeal. The mother was well aware of what had happened and, if she wished to challenge it on such grounds, she should have filed an appeal notice within the 21 day period prescribed in the rules rather than delay for several months before filing the application to revoke. Ms Cheetham cited the observation of Cobb J in Re J (Adoption: Appeal) to the effect that, where it was claimed that there had been a material irregularity, the right course was to bring an appeal rather than an application to revoke under the inherent jurisdiction.

He returns to this point at para 27:

Furthermore, in my judgment the better course for the mother in these circumstances would have been to file a notice of appeal seeking permission to appeal within the time period prescribed in the rules rather than bring an application at a later date under the inherent jurisdiction to revoke the order. If an adoption order is to be set aside, the applicant should bring the necessary proceedings speedily once the fact of the irregularity is known. In this case, the mother knew about the irregularity before the order was made. It was therefore incumbent on her to bring a challenge as soon as possible. I make it clear, however, that the approach to be followed by the court is to all intents and purposes the same whichever course is taken.

Comment:

Despite the concerns raised at the hearing about the potential for disruption by continued use of the inherent jurisdiction to try to set aside adoption orders at unpredictable periods after they were made, we don’t think that advising parents that a timely appeal is ‘the better course’ will resolve that uncertainty. As Baker LJ observed, the legislation was written to provide clear, fair opportunities to challenge adoption decisions. The use of the inherent jurisdiction in a case as weak as this one is troubling.        

Image: Three children standing – thanks Libreshot

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