LAW REPORT: Adoption order could not be set aside

Re B (adoption: setting aside).

Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Simon Brown and Lord Justice Swinton Thomas).

17 March 1995

The court had no power to set aside the adoption by orthodox Jewish parents in 1959 of a child whom they had been told was Jewish but was in fact of mixed Kuwaiti Muslim and English Catholic parentage, because despite the fundamental mistake upon which it was based, the adoption order itself was regularly made.

The Court of Appeal dismissed an appeal by Jonathan B against the decision of Sir Stephen Brown, President of the Family Division (Independent, 10 May 1994; [1995] 1 FLR 1) refusing to set aside an adoption order made in Liverpool County Court on 20 July 1959.

B's father, a Muslim, and mother, an English Catholic, never married. The father returned to Kuwait without knowing of B's existence; the mother had him adopted through a nursing home in Manchester, which placed him with an orthodox Jewish couple who were led to believe he was Jewish and brought him up as a Jew. When, nine years later, they discovered the truth, they had him formally accepted into the faith in 1970.

In 1978, B began to investigate his background. He wished to settle in Israel but was suspected of being an Arab spy and told to leave. He traced his father but could not settle in Kuwait either. In neither the Jewish nor Arab communities was he accepted.

Allan Levy QC and Timothy Compton (White & Sherwin, Croydon) for the applicant; James Holman QC (Official Solicitor) as amicus curiae.

LORD JUSTICE SWINTON THOMAS said an adoption order had a quite different standing to almost every other order made by a court. It provided the status of the adopted child and of the adoptive parents. Section 52 of the Adoption Act 1976 provided for the revocation of an adoption on legitimation, and section 53 for the annulment of overseas adoptions. But there were no statutory provisions for revoking a validly made adoption order.

There were cases where an adoption order had been set aside for procedural irregularity, such as a failure to give proper notice to the natural parent so as to enable him or her to give or withhold consent.

But there was no previous case in which the court was held to have an inherent power to set aside an adoption order for misapprehension or mistake. To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would undermine the whole basis on which adoption orders were made, namely that they were final and for life as regards the adopters, the natural parents and the child.

It would gravely damage the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order.

Nobody could have other than the greatest sympathy with the applicant but the case did not provide any ground for setting aside an adoption order which had been regularly made.

SIR THOMAS BINGHAM MR and LORD JUSTICE SIMON BROWN concurred.

Paul Magrath, Barrister