The courts have no jurisdiction to set aside a validly made adoption order other than through an appeal, the Supreme Court has found.

In X and Y (Children: Adoption Order: Setting Aside), X and Y’s adoptive mother (AM) sought to revoke an adoption order on welfare grounds; X and Y, who are no longer children, supported the application as did their birth mother (BM).

AM’s motivation, the judgment noted, ‘has been to support [X and Y] and give effect to their wishes and feelings’. AM sought the revocation of the adoption order under the High Court’s inherent jurisdiction. The court found it had no power to revoke the adoption orders. The Court of Appeal dismissed AM’s appeal. AM appealed to the Supreme Court.

Lord Stephens and Lady Simler, who delivered the judgment with which Lord Reed, Lord Sales and Lord Doherty agreed, dismissed the appeal, finding the position of an adopted child is no different from that of a child born to their natural parents. 'In relation to a child born to their natural parents there is no power to revoke parenthood, except by making an adoption order.’

They said: ‘There are strong public policy reasons for the “peculiar finality” of an adoption order once made, grounded in the nature and intended effect of an adoption order but also in the potential damage that would be done to 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, and to the willingness and availability of prospective adopters if this possibility were to exist. These policy considerations militate against any measure which dilutes or undermines the finality and certainty of an adoption order.’

There is ‘no legal mechanism by which natural parents or children can extinguish the parent-child bond between them,’ the judgment said.

‘Just as for a natural parent, the only means of extinguishing an adoptive parent’s parental responsibility is by the subsequent making of another adoption order (section 46(5) of the [Adoption and Children Act 2002]). There is no right to re-establish the original family life that has ended by adoption and any transfer back of parentage to the natural parent is achievable only by a further adoption order.’

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Referring to parens patriae jurisdiction – ‘an ancient prerogative jurisdiction belonging to the Crown going back to medieval times’ – the judges said: ‘There is no precedent in history for a prerogative power to change the parental relationship in the manner contended for by AM, BM and Y, so the conclusion must be that no such power existed.

‘If the power to reorder parental responsibility has never existed, there is no basis on which this residual jurisdiction can be said to have been preserved.

‘The court has no parens patriae powers that can be exercised to revoke a valid adoption order to extinguish and then transfer parental responsibility outside the statutory scheme in the ACA 2002.’

Such a power, the Supreme Court judges said, ‘would impermissibly have cut across the statutory scheme in the ACA 2002 and would accordingly have been excluded’.

It added: ‘The sole provision made for revocation is narrow and limited to legitimation. This was a deliberate choice by parliament.’

Sarah Williams, family partner and head of children at London firm Forsters said: ‘The Supreme Court has reaffirmed the principles of finality and permanence in adoption law. Adoption isn’t a flexible or temporary arrangement that can be revoked when family dynamics shift, rather it is a transformative legal order which cements life long legal parentage.  Allowing revocation in adoption cases would introduce uncertainty into a system that depends on stability and certainty for children and also confidence for adopters. The court has drawn a clear line reiterating that revocation is only applicable in highly exceptional circumstances.’