J (Adoption: Appeal) [2018] EWFC 8 (13 February 2018)

A father successfully appealed out of time against an adoption order made in 2013 granting adoption of his son to the step-father. The mother and step-father had deceived professionals and the court by falsely claiming the father’s identity was unknown.

Facts

J, aged 11 at the time of the appeal, was the son of F (the father/appellant) and M (the mother). F and M had a brief relationship in their late teens. F visited J in his early weeks, bringing gifts, but contact diminished as F suffered from anxiety and depression stemming from adverse childhood experiences. F did not have parental responsibility and was not named on the birth certificate. There was occasional contact through social media and one day spent together when J was 3 or 4.

M later married SF (the step-father), with whom she had another child. In April 2013, SF applied for an adoption order at the Great Grimsby Family Proceedings Court. In the Annex A report and to the Cafcass reporting officer, M and SF asserted they did not know F’s identity, whereabouts, or contact details. M falsely claimed J was conceived from a one-night encounter with an unknown male while under the influence of alcohol. M’s wider family corroborated these falsehoods. In reality, M and SF knew F’s identity, his mother’s address, his mobile number, his social media contacts, and mutual friends.

An unopposed adoption order was made on 1 May 2013. In 2016, having recovered from depression, F sought to resume his relationship with J and only then learned of the adoption. He applied for permission to appeal out of time.

Issues

The issues for Cobb J were: (i) whether F, who had not been a party to the adoption proceedings, should be permitted to appeal out of time; and (ii) whether the adoption order should be set aside on the basis that it had been obtained through deception and in breach of natural justice.

Arguments

F’s grounds of appeal contended that M and SF, despite knowing his identity and having numerous means of contacting him, made no attempt to serve him or inform him of the proposed adoption; that they lied to the local authority, reporting officer and court about their knowledge of paternity; and that, as a result, the professionals and the court were unable to assess the adoption application properly.

The Respondents (M and SF) did not oppose the appeal and accepted they had misled the professionals and the court.

Judgment

Cobb J granted permission to appeal out of time pursuant to rules 30.4(2) and 30.7 FPR 2010, applying the approach in Webster v Norfolk CC [2009] EWCA Civ 59 and Re W [2016] EWCA Civ 1140. He held that although F was not a party below, he was so directly affected, and his Article 8 ECHR rights so profoundly engaged, that he should probably have been made a respondent under rule 14.3(3) FPR 2010.

On the merits, the judge found each ground of appeal unchallengeable. The professionals had been prevented from conducting proper statutory enquiries, and the magistrates were materially misled about J’s paternity, background history, and F’s interest in him. The outcome was “unjust” because of a “serious irregularity” under rule 30.12(3)(b) FPR 2010.

Cobb J recognised that adoption orders are only set aside in highly exceptional circumstances, citing Webster. He referenced the judgment of Sir Thomas Bingham MR in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239:

An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud.

He also cited Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221:

The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.

He referenced illustrative decisions including Re M [1991] 1 FLR 458 and Re F (R) (An Infant) [1970] 1 QB 385, where adoption orders were set aside due to non-disclosure or failure to locate a parent. He noted Sir Ernest Ryder SPT’s observation in Re S (Adoption: Annex A report) [2015] EWCA Civ 1345 that the Annex A report operates as:

…a fundamental statutory protection for a child who any person seeks to adopt. It is produced by a local authority officer and a local authority is subject to statutory duties in its compilation that directly relate to the safeguarding of the welfare of the child concerned.

The judge explained that the deception prevented the social worker from properly evaluating welfare checklist factors under section 1(4) ACA 2002, including the likely lifelong effect on J of ceasing to be a member of F’s family, and the wishes and feelings of paternal relatives. The local authority was also denied the opportunity to fulfil its obligations under regulation 14 of the Adoption Agencies Regulations 2005, including counselling F and ascertaining his wishes and feelings.

Cobb J described M and SF’s conduct as “disgraceful”, stating they had deliberately undermined the solemnity of the adoption process and concealed F’s Article 8 rights. Although false statements verified by a statement of truth could attract contempt proceedings under rule 17.6 FPR 2010, F did not wish for M and SF to be punished, and the judge declined to initiate civil sanctions.

The adoption order was set aside, and the Registrar General directed to remove the entry from the Adopted Children Register. J, who had told a social worker he wished to be “unadopted”, now has regular contact with F. Consent orders were also made granting F parental responsibility and providing for regular weekend staying contact.

Implications

This judgment reaffirms that, while adoption orders possess a “peculiar finality” (per Sir Thomas Bingham MR in Re B), they are not immune from challenge where there has been a fundamental breach of natural justice or where the order was obtained by fraud or material non-disclosure. The case provides a modern illustration of the circumstances in which appellate intervention is warranted.

The decision underscores the integrity that is expected of applicants in the adoption process, particularly in the completion of statutory documentation and the Annex A report. It demonstrates that where parties deceive professionals and the court about a natural parent’s identity or whereabouts, the resulting order may be set aside, even years later, where the natural parent’s Article 8 rights have been circumvented.

For practitioners, the case emphasises: the availability of the appeal route (as opposed to the inherent jurisdiction) where procedural irregularity in the making of the adoption order is shown; the importance of the statutory safeguards in the Adoption and Children Act 2002 and the Adoption Agencies Regulations 2005; and the potential for contempt proceedings under rule 17.6 FPR 2010 where applicants make false statements verified by a statement of truth. The judgment also confirms that a non-party who is directly affected by adoption proceedings, particularly where Article 8 rights are engaged, may be granted permission to appeal out of time.

The case is confined to its exceptional facts and does not widen the categories for setting aside adoption orders, which remain narrow. It serves as a strong warning that deception of adoption professionals and the court will not be tolerated and may lead to orders being unwound.

Verdict: Permission to appeal out of time granted; appeal allowed; adoption order of 1 May 2013 set aside; Registrar General directed to remove the entry in the Adopted Children Register; consent orders made granting the father parental responsibility and regular weekend staying contact.

Important update: In the matter of X and Y (Children: Adoption Order: Setting Aside) [2026] UKSC 13

Source: J (Adoption: Appeal) [2018] EWFC 8 (13 February 2018)