Webster (The Parents) v Norfolk County Council & Ors (Rev 1)

A lawfully and regularly made adoption order has a peculiar finality because it permanently determines the status of the child and adoptive parents. The court may set such an order aside only in highly exceptional circumstances, such as a fundamental denial of natural justice or fraud. A later possibility that the evidence underlying the preceding care and freeing orders was mistaken does not suffice.

Article 8 of the European Convention on Human Rights does not require a different result. The interests of adopted children and their adoptive families, and the public interest in the irrevocability of adoption, may override the natural parents’ interest in reopening the earlier proceedings.

The parents sought permission, substantially out of time, to appeal care orders and orders freeing their three eldest children for adoption. They also challenged the subsequent adoption orders and applied to adduce fresh medical evidence. The orders followed a finding in the Norwich County Court that fractures sustained by one child were non-accidental and had been inflicted by one or both parents.

Medical evidence obtained during later proceedings concerning a fourth child gave substantial support to the alternative diagnosis of scurvy and iron deficiency. Those later care proceedings were discontinued, and the fourth child remained with the parents. By then the three older children had been adopted into two families.

The central questions were whether valid adoption orders could be set aside because the original medical findings might have been mistaken, whether Convention rights altered the position, and whether the fresh evidence satisfied the requirements governing its admission.

1. The applications were refused. The decisive obstacle was the finality of the adoption orders. Adoption is a statutory process which permanently changes the status of the child and the adoptive parents. Once an adoption order has been lawfully and regularly made, judicial discretion to set it aside is severely restricted. A possible miscarriage of justice in the evidence underlying earlier care and freeing orders is not, without a fundamental breach of natural justice, fraud or a comparable exceptional defect, sufficient: Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 applied.
2. The parents had a sufficient interest to seek permission to appeal despite not having been parties to the adoption proceedings. A person sufficiently affected by an order may, in an appropriate case, be joined for that purpose. This did not overcome the substantive rule governing valid adoption orders.
3. The earlier decision in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181 did not justify reopening the proceedings. In that case the children had not yet been adopted. That distinction was vital.
4. Articles 6 and 8 of the European Convention on Human Rights did not alter the result. Article 8 required regard to the rights of all concerned, particularly the best interests of the children and the stability of their adoptive families. The European authorities did not require valid adoption orders to be disturbed.
5. Once the adoption orders could not be set aside, reopening the care and freeing judgments would serve no operative purpose. The fourth child lived with the parents without a statutory order, while the proceedings concerning the older children had culminated in irrevocable adoptions.
6. Wall LJ additionally considered that the proposed fresh evidence failed the reasonable-diligence requirement in Ladd v Marshall [1954] 1 WLR 1489. Specialist opinions concerning nutrition and scurvy could have been sought before the original fact-finding hearing. He nevertheless accepted that the evidence was potentially influential and apparently credible.
7. The court stressed for future cases that an unusual causal hypothesis should not be rejected merely because it is rare. Where a child’s history contains an unusual feature plausibly connected with the injuries, specialist appraisal should be obtained at an early stage. In pivotal cases the court should be slow to refuse a properly founded request for a second expert opinion.

1. Court of Appeal (Civil Division): Refused the parents’ applications for permission to appeal out of time, to adduce fresh evidence and to challenge the care, freeing and adoption orders: [2009] EWCA Civ 59.
2. Norwich County Court: On 21 May 2004, HHJ Barham found that one child’s fractures were non-accidental and that the parents were the only possible perpetrators. On 24 November 2004, he made care orders and orders freeing the three children for adoption.
3. Adoption proceedings: Adoption orders were made in December 2005, placing two children together and the third in a separate adoptive family. No procedural irregularity in those proceedings was alleged.