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Has adoption just been weakened?

“Adoption is the legal process whereby a court irrevocably extinguishes the legal ties between a child and the natural parents or guardians, and creates analogous ties between the child and the adopters.”

So it says in my copy of Cretney’s Principles of Family Law, the leading textbook on family law (the eighth edition). Note the word ‘irrevocably’, and the fact that the new ties between the child and the adopters are intended to be just as strong as the original ties between the child and its natural parents.

Adoption is meant to be final and for life. It re-writes the child’s parentage, as if the child had been born to the adoptive parents. ‘Simple adoptions’, that are easily revocable and that exist in some countries, cannot be made in this country. Adoption law in this country has been specifically designed the way it is, because it is considered that a permanent legal relationship between the child and the adoptive parents confers security (both for the child and for the adopters) and a sense of ‘belonging’.

On 31 July, Mrs Justice Pauffley made an order allowing a child’s application to revoke her own adoption, in the case PK v Mr And Mrs K. She was clearly aware of the implications of such an order, mentioning the public policy considerations and emphasising three times in her short judgment that it was “highly exceptional” and that it had been made in very particular circumstances. I think few would disagree that the order was the best thing to do for the child’s welfare, but is it possible that by making such an order Mrs Justice Pauffley has weakened the whole concept of adoption?

As Mrs Justice Pauffley pointed out in her judgment, this is not the first time that an adoption order has been revoked. However, so far as I am aware the previous occasions have been precious few and never in circumstances remotely like these. Here, the application was made by the child, and made a full ten years after the adoption order. Most previous examples I have found relate to situations where there was a procedural irregularity in the making of the adoption order, or where the consent of a natural parent to the adoption was made on the basis of a mistake.

Further, in most previous cases the revocation occurred not long after the adoption order. In Re Webster v Norfolk County Council, a case that Mrs Justice Pauffley mentions, an adoption order had clearly been made under a misapprehension as to the facts (it was thought that the child’s injuries were non-accidental, but subsequent evidence indicated that they were caused by scurvy rather than abuse), but even so the Court of Appeal felt unable to revoke the order, due to the passage of time (four years) since the order had been made.

Is it just possible that PK v Mr And Mrs K opens the door, albeit very slightly, to further attempts to ‘undermine’ the permanence of adoption in the future? Maybe other children, disillusioned with their adoptive parents, might make similar applications? And perhaps others might be encouraged to seek a revocation despite a considerable time having elapsed since the order was made?

To continue the analogy of things being opened, Mrs Justice Pauffley quoted from the judgment of Bodey J in a 2013 case, in which he referred to the revocation of an adoption order as a ‘Pandora’s Box’. Surely, making adoption orders more revocable is also a Pandora’s Box? Has Mrs Justice Pauffley inadvertently lifted the lid on that box herself, with all of the implications that that entails for adoption in the future?

I may not be the best to judge (my practical expertise in the area of adoption during my career consisted primarily of straightforward step-parent adoptions), but it does feel to me that things may just have changed a tiny bit, although that is not to say that I believe there will be far larger numbers of successful revocation applications in the future. Certainly, and most importantly, I don’t think there should be any cause for concern either amongst adopted children or adoptive parents that the security of their relationships has been diminished.

All the same, it is an interesting case, which no doubt will have been noted by those lawyers who do specialise in adoption.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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