Case O (Human Fertilisation and Embryology Act 2008)

Where a person is already the legal parent of a child, an adoption order made on the fundamental mistake that adoption is required may be revoked under the High Court’s inherent jurisdiction. The ordinary rule is that a properly made adoption order has exceptional finality and cannot be set aside for mere mistake or miscarriage of justice. A fundamental mistake of law going to the root of the adoption process is materially different. Revocation restores the status quo ante. In an appropriate case, the court may also make a declaration of parentage and direct that the adoption-related markings are omitted from future birth certificates.

X and Y, married civil partners, jointly undertook fertility treatment intending that Y would be the legal parent of their child, C1. Although the relevant consent form signed by Y could not be found, the court found that it had been signed and lost. Y was therefore already C1’s legal parent when she later adopted C1 after being wrongly advised that adoption was necessary.

X sought a declaration of parentage and revocation of the adoption order. The central questions were whether the court could revoke the adoption order under its inherent jurisdiction and what consequences followed for C1’s birth registration.

1. Parentage. The treatment had been undertaken jointly, with the intention that Y should be C1’s legal parent. The entry in the treatment checklist sufficiently evidenced a Form PP signed by Y at the proper time and in proper form. The missing form was treated as lost or mislaid. Applying the principles adopted in In re A [2015] EWHC 2602 (Fam), the court declared that Y was C1’s legal parent under section 36 of the Human Fertilisation and Embryology Act 2008.
2. Revocation jurisdiction. The High Court has inherent jurisdiction, in an appropriate case, to revoke an adoption order. The court preferred the reasoning in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam) and PK v Mr and Mrs K [2015] EWHC 2316 (Fam) to the contrary view in Re PW (Adoption) [2013] 1 FLR 96.
3. A lawfully and properly made adoption order attracts a very high degree of finality. It cannot ordinarily be set aside for mere mistake or even miscarriage of justice. Revocation is confined to highly exceptional and very particular circumstances, as explained in Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431 and Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59.
4. This case was fundamentally different. When Y applied for adoption, she was already C1’s mother in law. The adoption process therefore proceeded on a fundamental mistake of law going to the root of the process and to the need for an adoption order. Revocation would not remove C1 from one family and return C1 to another. It would recognise the existing legal and factual reality, restore the status quo ante, and serve C1’s welfare.
5. The adoption order was to be revoked, using the statutory language of “quashing” in Schedule 1, paragraph 4(6) of the Adoption and Children Act 2002. The marking “Adopted” would be cancelled, and future birth certificates would omit both the marking and its cancellation under Schedule 1, paragraph 4(8). The original birth certificate was to be returned to X and Y. The clinic agreed to pay the costs.