In a rare move, the High Court has revoked a premature adoption order issued after a Judge became confused during the hearing.
The placement order made in December 16 for a then two year-old boy referred to as ‘J’.
Sitting the High Court, Mr Justice Hayden said:
“J has been described as a happy, friendly, confident little boy who loves to engage with others and is keen to accept and reciprocate affection.”
As a result of his sunny nature, it didn’t take long for prospective adopters to come forward. He was placed with a family and they applied to adopt him in August this year.
J’s case reached court in September, at a preliminary hearing presided over by Judge Penna. The local authority overseeing the case did not attend but the birth mother and her own mother did, without a lawyer, hoping to oppose the adoption.
In his subsequent High Court ruling, Mr Justice Hayden explained that opposition to a planned adoption “requires the applicant to establish the necessary change of circumstance and then for the Court to evaluate the application in the context of the child’s best welfare interest long term.”
As an unrepresented litigant in person, the mother should have been advised to seek representation, he continued, and also instructed on the correct way to file evidence and present her case for opposition. This would have allowed it to proceed in the correct manner.
However, Mr Justice Hayden added:
“It is abundantly clear, I regret to say, that the Judge became confused as to what application she was hearing and what procedure she was following.”
Judge Penna did address the shortcomings in the mother’s case, saying that J was doing well with his new carers and that the claim to have conquered her alcoholism was not enough of a reason for the proposed adoption to be halted.
However, the Judge then proceeded to grant the adoption order. Mr Justice Hayden explained:
“Had the Judge stopped there all might have been well but, inexplicably she proceeded to grant an adoption order to the applicants, at this first directions hearing. She manifestly had insufficient material before her to make the Order which is perhaps the most draconian in the Family law canon. This was a complete aberration and plainly flawed.”
Shortly afterwards, a lawyer for the local authority realised something had gone wrong, and raised her concerns in an email which was forwarded to Judge Penna.
“It seems to me that the Judge must have realised her mistake pretty quickly as she issued an order which purported to revoke the Adoption Order.”
Normally adoption orders can only be revoked in exceptional circumstances. In most instances they are only issued when a Judge has been convinced that it is the best option for the child and that “nothing else will do”. In addition, only the High Court has the jurisdiction to revoke an adoption order, which severs the legal ties between a child and their family.
The Judge noted therefore that the supposed revocation order issued by Judge Penna “was outside her powers, thus plainly void and as it was intercepted before being drawn or sealed.”
Mr Justice Hayden concluded that the circumstances surrounding the adoption order were sufficiently unusual to warrant revocation. He set out the reasons for taking this step despite the distress and uncertainty it would case both J’s prospective adopters and his birth parents.
“I would … emphasise one important and, in my judgment, inalienable right, namely, that of J to know in the future that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity.”
The case was sent back to court for a fresh adoption hearing before a different judge.
Read the full ruling here.
Image by Arizona Department of Transportation via Flickr