Ancient “fatherly” Court Power Cannot be used to Overturn Adoptions

The UK Supreme Court has ruled that courts cannot use a “father-of-the-nation” power dating back to the Middle Ages to undo adoption orders, underscoring that adoption is a final and permanent choice. 

The bench emphasised that adoptions extinguish the legal relationship between a child and its birth parents, replacing it with the child’s legal relationship with adoptive parents. While an adoption order can be appealed within the statutory time period, there is no inherent power of the court to revoke it.

In the matter of X and Y (Children: Adoption Order: Setting Aside) - UK Supreme Court

Adoptions in the UK

Until the First World War, adoption was largely unregulated. But as the conflict swept through Europe, many children were left fatherless – causing an uptick in informal adoptions. Several parliaments looked at introducing legal adoptions, but disagreed on whether such adoptions should be revocable. 

Adoption orders finally passed into law in 1926 with the Adoption of Children Act. That statute established that adoptive parents would have the same legal relationship with the adopted child as if they were the child’s natural parents. As adoption was intended to be a lifelong, final commitment, there was no way in which it could be overturned.

There is one exception. In 1958, Parliament introduced a single provision that would allow for the revocation of an adoption order: legitimation. This was designed to combat societal stigma attached to a child out of wedlock, where one parent adopted it. The legitimation exception allows for the revocation of an adoption where the parents subsequently marry, “legitimating” the child.  

The current scheme exists under a New Labour statute: the Adoption of Children Act 2002. Under this scheme, a court can make a placement order to put the child in the care of the local authority, which will then look for a placement with a prospective adopter. The prospective adopter will look after the child for at least 10 weeks, before applying for an adoption order. 

The court will consider a welfare checklist, which includes factors such as the child’s wishes, background, needs and relationships with any birth relatives – before choosing whether to make an adoption order.

As of the making of the order, the child is the legal child of its adoptive parents. 

“A legal fiction”

This case concerned two sisters: X and Y. The pair were adopted in 2013 aged 5 and 4 years old, and maintained contact with their birth mother. In 2021, they moved to live with their birth mother. Y chose to stay with her birth mother, while X moved to live with her natural father. 

The sisters’ relationship with their adoptive mother did not break down, and she made the application to revoke Y’s adoption order in 2023 to give effect to the children’s wishes. She argued that the High Court has an “inherent jurisdiction” to revoke the order even where the statute does not provide for one, in order to support the children’s welfare.

At first instance, the High Court said it would be in the best interests of Y to revoke the order, but that it had no power to do so. It reflected that Y has found the adoption order deeply distressing and not reflective of her sense of self, with the adoptive mother describing her as living a “legal fiction”. 

After the adoptive mother appealed, the Court of Appeal agreed that the High Court had no jurisdiction to set aside the order, which could only be revoked by way of an application to appeal out of time.  

Parens patriae: the court as the “father of the people”

The adoptive mother’s application and subsequent appeals rested on the argument that the courts have the inherent jurisdiction to step in for a child’s welfare. The principle of “parens patriae” is an ancient prerogative stemming back to a quasi-parental relationship between the Crown and British nationals to look after those who cannot look after themselves. 

Where Parliament has stepped in and provided for these powers to be exercised and limited through statute, those powers fall outside the prerogative and can only be exercised as under the statute. For example, the use of parens patriae no longer applies to the protection of adults without mental capacity: it was displaced by the Mental Health Act 1959. 

The power continues to be exercised in cases of very ill children or determining life-saving treatments. 

The Question: Does an English court have an inherent jurisdiction to set aside a validly made adoption order?

In short, no. There is no statutory mechanism to revoke an adoption order, and the bench of Lords Reed, Sales, Stephens and Doherty and Lady Simler found no precedent to say that English courts could do so under the parens patriae. 

They considered a case in which the court had refused to set aside an adoption order made 35 years previously when a child born to a white English mother and a Muslim Arab father was adopted by an Orthodox Jewish couple, who had been informed the child was Jewish. Despite the Court of Appeal accepting that there was a fundamental mistake in the order, and that an appeal brought in time might well have succeeded, the court found that invalidating the order would undermine the whole basis of adoption orders.

And that’s the key point: adoptions are based on stability and commitment. The Supreme Court heard from the Secretary of State for Education as well as three family law organisations, all of which submitted that adoption orders should be final and permanent. 

The court cited “powerful policy concerns”, including that an inherent ability to revoke orders could damage the lifelong commitment of adopters as it would lead to a public perception that adoption is reversible and less serious an undertaking than biological parenting – the very thing adoption orders seek to avoid. 

It also considered that any measures weakening the certainty of adoptions could deter potential adopters. “Open adoptions” involving contact between the child and its birth family are increasingly common, and in the era of social media it is increasingly likely that a child would be able to make such a contact. As such, finality and certainty are key. 

The bench held that even if an inherent jurisdiction existed, these policy concerns meant it would impermissibly cut across the existing statute. 

So what if an adoption goes wrong?

The first port of call for an allegedly invalid adoption order is an appeal, brought in time. The courts also have the power to extend the time in which an appeal may be brought, considering the child’s interest. In one case, permission to appeal was granted three years after a step-parent’s adoption order, on the grounds that the order was obtained by deception. 

Courts are also – in rare circumstances – empowered to make further adoption orders. 

But the point to take away is this: in most cases, adoptions are for life.