In re B (Adoption: Jurisdiction to Set Aside)

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.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

1. 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.

2. High Court, Family Division: The President, Sir Stephen Brown, refused the application to set aside the 1959 adoption order: [1995] 1 FLR 1.