Summary
A court has no inherent jurisdiction to set aside a regularly made adoption order merely because it was founded upon a fundamental mistake or material misrepresentation. Adoption changes the status of the child, natural parents and adopters. Its intended permanence requires finality.
An adoption order remains open to an ordinary appeal and may be challenged where a denial of natural justice vitiated the proceedings. An order obtained by fraud may also be set aside. A mistake may justify relief on a timely appeal in wholly exceptional circumstances, but it creates no general jurisdiction to revoke an adoption many years later.
Factual background
An adult adopted in 1959 applied to set aside the adoption order after discovering that his natural father was a Kuwaiti Muslim. The placement had proceeded on the mistaken belief that the child had a Jewish father, and he had been adopted and raised by an Orthodox Jewish couple. His background later caused serious personal and practical difficulties.
The President of the Family Division refused the application, holding in [1995] 1 FLR 1 that the regularly made order could not be nullified. The appellant contended that the court possessed an inherent jurisdiction to set it aside for a fundamental mistake of fact. The central issue was whether such a jurisdiction existed independently of appeal, procedural invalidity or an express statutory power.
Held
Appeal dismissed unanimously. Swinton Thomas LJ, Simon Brown LJ and the Master of the Rolls held that the court had no inherent jurisdiction to set aside this regularly made adoption order because of mistake or misrepresentation. Adoption changes legal status and establishes permanent relationships between the adopted person, the natural parents and the adopters. Permitting a general collateral challenge would undermine the lifelong commitment and finality upon which the adoption regime depends.
The narrowly drawn provisions for revocation and annulment in sections 52 and 53 of the Adoption Act 1976 indicated a deliberate legislative choice. The absence of a general power contrasted with the wider statutory discretion conferred in New Zealand and Australia. The court could not reproduce that foreign regime through an inherent jurisdiction.
An adoption order is not wholly immune from challenge. A party may appeal in the ordinary way, including by seeking permission to appeal out of time. An order may also be set aside where a person entitled to participate received no notice and the proceedings consequently involved a denial of natural justice. The Master of the Rolls further considered that an adoption order proved to have been obtained by fraud could be set aside, although fraud was not established or decided here.
Re M (Minors) (Adoption) [1991] 1 FLR 458 created no general jurisdiction to revoke adoption orders for mistake. It concerned an appeal out of time by a natural father whose consent had been vitiated, brought soon after the order and in circumstances where revocation served the children’s interests. The court in that case had stressed its exceptional character. Those features were absent from the present application.
Swinton Thomas LJ also held that a misapprehension about the race, ethnic origin or parental religion of the child could not vitiate an otherwise freely given consent to adoption. Even a fundamental placement mistake did not supply jurisdiction to revoke an order after 35 years. The appeal was dismissed, legal aid taxation was ordered, and leave to appeal to the House of Lords was refused.
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Appellate history
Court of Appeal: The appeal was dismissed unanimously. The court affirmed that no inherent jurisdiction existed to set aside the regularly made adoption order for mistake. Leave to appeal to the House of Lords was refused.
High Court, Family Division: The President, Sir Stephen Brown, refused the application to set aside the 1959 adoption order: [1995] 1 FLR 1.
Appeal route
- Appealed from[1995] 1 FLR 1This appealappeal dismissed unanimously; leave to appeal to the house of lords refused
- This judgment [1995] Fam 239 Court of Appeal
Key cases cited
9 authorities cited.
- Re E [1992] NZ FLR 216
- Re M (Minors) (Adoption) [1991] 1 FLR 458
- Application by C & K (Adoption) [1984] 3 NZ FLR 321
- R v West Sussex Quarter Sessions, Ex p Albert and Maud Johnson Trust Ltd (Johnson (Albert and Maud) Trust Ltd, Ex parte) [1974] QB 24
- In re RA (1974) Family Law 131
- In re F (R) (An Infant) [1970] 1 QB 385
- R v Leeds City Justices, ex parte Gilmartin (1951) CLY 4853
- J and J v C's Tutor [1948] SC 636
- In re F
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Cases citing this case
20 later cases · 15 positive · 1 neutral · 4 caution
Most senior citing decisions:
- X and Y (Children: Adoption Order: Setting Aside), Re [2026] UKSC 13 approved
- X & Anor (Children: Adoption Order: Setting Aside), Re [2025] EWCA Civ 2 followed
- Webster (The Parents) v Norfolk County Council & Ors (Rev 1) [2009] EWCA Civ 59 followed
- X and Y (Revocation of Adoption Orders), Re [2024] EWHC 1059 (Fam)
- AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam)
- Z v Y (Revocation of Adoption Order) [2021] EWHC 1153 (Fam)
- CD v Blackburn with Darwen Borough Council (adoption set aside) (Rev 1) [2020] EWHC 3411 (Fam)
- HX v A Local Authority & Ors (Application to Revoke Adoption Order) [2020] EWHC 1287 (Fam)
- ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam)
- J (A Minor : Revocation of Adoption Order) [2017] EWHC 2704 (Fam)
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