W (A Child : No 4)

An adoption order may be set aside only on a properly established ground such as a failure of natural justice or fraud by which the order was obtained. Serious allegations do not justify further disclosure or questioning without a prima facie case. The court will not permit a fishing expedition.

Even if fraud or dishonesty is alleged, it must have materially procured the adoption order. It is insufficient to show conduct relating only to a separate issue, such as post-adoption contact, where adoption was decided independently on the child’s welfare. A post-adoption contact application may therefore be dismissed separately from an application to set aside the adoption order.

An adoption order had been made in the earlier proceedings concerning W and sealed on 18 April 2017. The father subsequently alleged that W’s adoptive parents had failed to disclose a possible move to the United States and had concealed a conversation with an audiologist. He applied under the inherent jurisdiction to set aside the adoption order and to prevent W’s removal from the jurisdiction. He also applied under section 51A of the Adoption and Children Act 2002 for a post-adoption contact order.

The central questions were whether there was an arguable basis for setting aside the sealed adoption order on grounds of fraud or dishonesty, whether further disclosure should be ordered, and whether the court should revisit its earlier decision not to order post-adoption contact.

1. Applications dismissed. The application to set aside the adoption order and the application for a post-adoption contact order were both dismissed summarily.
2. The court accepted that a regularly made adoption order is subject to a very high threshold for challenge. Under In re B (Adoption: Jurisdiction to Set Aside), jurisdiction may exist where there has been a failure of natural justice or where the order was obtained by fraud. The continuing duty of full and frank disclosure in a family case extends until judgment is handed down, as reflected in CPR 31.11(1).
3. The father had not established a prima facie case of fraud or dishonesty. The alleged non-disclosure of the adoptive father’s acceptance of a United States-based job was not fundamentally inconsistent with the evidence or with any assumption made in the earlier judgment. The conversation with the audiologist occurred after judgment and was principally a reaction to the later order concerning disclosure of medical correspondence.
4. In the absence of a prima facie case, it would be wrong to require further disclosure or permit further questioning in the hope that evidence might emerge. The ordinary procedural principles applied equally in the Family Division. The principle in Sharland v Sharland did not assist because its operation depended on fraud having been established.
5. In any event, the alleged conduct could not have procured the adoption order. The adoption decision was based on the severe detriment to W if removed from the care of her adoptive family. It was not contingent on future contact or on the adoptive parents remaining in England. The requirements identified in In re B were therefore not met.
6. The contact application had to be considered separately. Applying the earlier assessment under section 51A and sections 1(4)(f) and 51A of the Adoption and Children Act 2002, there was no reason to revisit the conclusion that no contact order should be made.

The judgment records that the father’s application to the Court of Appeal for permission to appeal against the adoption order was refused by McFarlane LJ on 26 May 2017. The present applications were subsequently made in the High Court concerning the sealed adoption order and post-adoption contact.