FAMILY DIVISION
B e f o r e :
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HX |
Applicant |
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- and - |
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A Local Authority -and- Y -and- Z (By Her Children's Guardian) |
First Respondent Second Respondent Third Respondent |
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Ms Julie Doyle (instructed by Local Authority Solicitor) for the First Respondent
Mr Jason Green (instructed by Dawson Cornwell) for the Second Respondent
Mr Alan Cyrne (of Temperley Taylor LLP) for the Third Respondent
Hearing date: 19 May 2020
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Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
"The applicant is adamant that he was not made aware of the proceedings. Firstly, because his daughter who was born in Uganda was removed from Uganda by her mother with his knowledge and ties severed. The father continues to reside in Uganda. There (sic) local authority failed to take adequate steps to locate and notify the father of the proceedings.
The applicant was unaware of the care or placement proceedings regarding his daughter. After the making of care and placement orders he contacted the court. The Ugandan embassy wrote to the court prior to the permission hearing to express their interest in the case as the child is a Ugandan national.
Father was directed by the court in August 2019 to provide a statement / make representations however father did not have UK representatives at the time and the application for public funding although sought had not been secured in time for the hearing on 6 September 2019 and the application to adjourn the hearing on his behalf was not granted."
BACKGROUND
"A statement from the Red Cross workers involved with the mother, to include contact details for the person who had care of the child in Uganda, how the child was collected by / from whom, any copy documents held by the Red Cross confirming the child's identity, any proffer of the child's identity held or obtained by the Red Cross, and details of any involvement with the child since arrival in the UK including details of the events which led to a referral to Children's Services and any other concerns."
"[The birth mother] describes Z's father as a 70 year old male who is of Muslim faith. [The birth mother] explained that she was married into a polygamous marriage and Z's birth father already had many wives and children. [The birth mother] has failed to give a physical description of him but only reveals she is fearful of him. [The birth mother] only reports that he was a businessman and had wealth in the community. [The birth mother] reported that she was married to an elder at the request of her paternal family. She was very unhappy following her marriage and explained how she would attempt to climb over the fence as the property where she lived was gated and secured."
"A copy of a handwritten birth certificate provided by the mother identifies the father as XH. He has not been given notice of these proceedings as his whereabouts remain unknown."
"The mother states that the father of Z is named XH. He has played no role in these proceedings as the mother has provided insufficient information upon which to identify his whereabouts in Uganda. He was, according to the mother, her husband of a forced marriage and likely now to be in his late 70s."
"The only other change since the orders were made is that Z's father has been made aware of the proceedings and expressed, through solicitors and the Ugandan High Commission, his wish for Z to return to his care. Since his solicitor's letter to the court received on 28 June 2019, however, he has done nothing to engage with proceedings nor shown any commitment to Z or the court process. He has not made any application in his own right, has failed to file a statement as directed or even provide his contact details so that the local authority could make contact with him."
THE LAW
"An adoption order has a quite different standing to almost every other order made by a court. It provides the status of the adopted child and of the adoptive parents. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child."
And Lord Bingham MR (as he then was) observed at p. 251 that:
"The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents."
"An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud."
"There are cases where an adoption order has been set aside by reason of what is known as a procedural irregularity: see In re F.(R.) (An Infant) [1970] 1 Q.B. 385, In re R.A. (Minors) (1974) 4 Fam. Law 182 and In re F. (Infants)(Adoption Order: Validity) [1977] Fam. 165. Those cases concern a failure to effect proper service of the adoption proceedings on a natural parent or ignorance of the parent of the existence of the adoption proceedings. In each case the application to set aside the order was made reasonably expeditiously. It is fundamental to the making of an adoption order that the natural parent should be informed of the application so that she can give or withhold her consent. If she has no knowledge at all of the application then, obviously, a fundamental injustice is perpetrated. I would prefer myself to regard those cases not as cases where the order has been set aside by reason of a procedural irregularity, although that has certainly occurred, but as cases where natural justice has been denied because the natural parent who may wish to challenge the adoption has never been told that it is going to happen. Whether an adoption order can be set aside by reason of fraud which is unrelated to a natural parent's ignorance of the proceedings was not a subject which was relevant to the present appeal...As the case law stood, certainly in 1976, the powers of the court to set aside an adoption order as known to Parliament would, in my view, have been limited to the power to set aside such an order on the basis of a breach of natural justice such as I have described above, and not an inherent power to set aside an adoption order by reason of a mistake or misrepresentation."
And at p. 248
"There is no case which has been brought to our attention in which it has been held that the court has an inherent power to set aside an adoption order by reason of a misapprehension or mistake. 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. In my judgment Mr. Holman, who appeared as amicus curiae, is right when he submits that it would gravely damage the lifelong commitment of adopters to their adoptive children if there is a possibility of the child, or indeed the parents, subsequently challenging the validity of the order."
"The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside"
"[149] 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."
And at [163] that:
"[163] The question, therefore, is whether or not a substantial miscarriage of justice, assuming that this is what has occurred, is or can be sufficient to enable the adoption orders in the present case to be set aside."
"[27] There is no need for me to embark upon any detailed analysis of the case law. For present purposes it is enough to draw attention to a few key propositions: (i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in In re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order), para 6, and Pauffley J in PK v K, para 4, to the contrary view of Parker J in In re PW (Adoption), para 1. (ii) The effect of revoking an adoption order is to restore the status quo ante: see In re W (Adoption Order: Set Aside and Leave to Oppose), paras 11–12. (iii) However, "The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside 'only in highly exceptional and very particular circumstances'": In re C (A Child) (Adoption: Placement Order), para 44, quoting Webster v Norfolk County Council, para 149. As Pauffley J said in PK v K, para 14: "public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so." (iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside)) or even if there has been a miscarriage of justice (Webster v Norfolk County Council). (v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council is highly exceptional, yet the attempt to have the adoption order set aside in that case failed."
i) An adoption order effects a change that is, and is intended to be legally permanent. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child.ii) There are strong public policy reasons for not permitting the revocation of adoption orders once made, grounded in the nature and intended effect of an adoption order but also in the grave damage that would be done to the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order and in the dramatic adverse effect on the number of prospective adopters available if prospective adopters thought that the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made.
iii) Within this context, the courts discretion under the inherent jurisdiction to revoke a lawfully made adoption order is severely curtailed and can only be exercised highly exceptional and very particular circumstances.
iv) Those highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to a fundamental breach of natural justice.
SUBMISSIONS
The Birth Father
The Birth Mother
The Local Authority
The Children's Guardian
DISCUSSION
"Powers and duties of the children's guardian
16.20
(1) The children's guardian is to act on behalf of the child upon the hearing of any application in proceedings to which this Chapter applies with the duty of safeguarding the interests of the child.
(2) The children's guardian must also provide the court with such other assistance as it may require.
(3) The children's guardian, when carrying out duties in relation to specified proceedings, other than placement proceedings, must have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) of the 1989 Act as if for the word 'court' in that section there were substituted the words 'children's guardian'.
(4) The children's guardian, when carrying out duties in relation to proceedings to which Part 14 applies, must have regard to the principle set out in section 1(3) and the matters set out in section 1(4)(a) to (f) of the 2002 Act as if for the word 'court' in that section there were substituted the words 'children's guardian'.
(5) The children's guardian's duties must be exercised in accordance with Practice Direction 16A.
(6) A report to the court by the children's guardian is confidential."
CONCLUSION