In the matter of X and Y [2026] UKSC 13: the end of the “inherent jurisdiction” myth in adoption law

For more than a decade, family practitioners have operated under the comfortable assumption – tracing itself through a line of first instance decisions beginning with Bodey J’s judgment in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam) and crystallised by Sir James Munby P in Re O (A Child) (Human Fertilisation and Embryology: Adoption Revocation) [2016] EWHC 2273 (Fam) – that the High Court possessed an inherent, albeit “severely curtailed”, jurisdiction to revoke a validly made adoption order in “highly exceptional and very particular circumstances”. In X and Y, the Supreme Court has decisively and unanimously dismantled that assumption. The court holds that no such jurisdiction exists, has ever existed, or could exist consistently with the statutory scheme. The decision draws a line under a body of first instance jurisprudence described by the justices as reflecting a “misunderstanding of the appellate authorities” that had become “codified as received wisdom” (paragraph 50).

This review examines why X and Y is a landmark, what it changes in practice, and where its ripples may be felt – including in surrogacy, public law work, and the constitutional law of the prerogative.

The facts in outline

The factual matrix is strikingly sympathetic and, in a sense, an ideal vehicle for testing the outer limits of any supposed revocation power. X and Y, then aged five and four, were placed for adoption with AM in 2012 following a prolonged period in foster care. An adoption order was made in AM’s favour in May 2013. AM – far from being a rejecting or inadequate parent – actively facilitated contact with the natural mother, BM. By 2021, both children had returned to live with BM (and, in X’s case, subsequently with her natural father). AM applied in April 2023. By the time the matter was before Lieven J, X was 17 and Y was 16; both were held to be Gillick competent and both, with AM and BM, jointly sought revocation.

Lieven J found that, had the power existed, revocation would have been in Y’s best interests because Y found “the legal fiction produced by the adoption order deeply distressing and as not reflective of reality or her own sense of self” (paragraph 37). By the time the appeal reached the Supreme Court, both young women were adults – a fact that, the court accepted, rendered the issue academic in the particular case (the parens patriae jurisdiction cannot be exercised over adults). The court nevertheless heard the appeal applying Ex p Salem [1999] 1 AC 450, recognising “the likelihood that there will be other cases like this one” (paragraph 5). That candid acknowledgement is itself significant: the court was conscious that it was setting down a general rule for a category of case, not resolving a dispute.

The central holding

The ratio is stark. At paragraph 73:

“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.”*

* Adoption and Children Act 2002 (ACA 2002)

The reasoning proceeds on three mutually reinforcing bases:

1. Historical: the prerogative parens patriae power never extended to the reordering of parental responsibility. “Adoption is entirely a creature of statute. Until the statutory power was enacted, no such power was ever invoked” (paragraph 66).
2. Functional: the residual parens patriae power, where it survives, exists to protect children from significant harm where no statutory route is adequate. Revocation of adoption is neither necessary nor suitable to that protective function, given the “ample powers under the Children Act 1989” (paragraph 69) – including care, supervision, section 8 and special guardianship orders – together with re-adoption under section 46(5) of the ACA 2002 and ancillary measures such as surname change.
3. Constitutional: applying the Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 line of authority, the ACA 2002 has “occupied the ground” (paragraph 71). Even if a prerogative power had existed, it would have been displaced.

Why the case matters

1. It eliminates a jurisdiction that practitioners have increasingly been invited to invoke

Perhaps the most immediate practical consequence is that applications of the kind made in Re W (Bodey J) and Re O (Sir James Munby P) are now impermissible. The Supreme Court is explicit that those cases “reflect a misunderstanding of the appellate authorities” (paragraph 50). The well-trodden route of issuing an originating application in the Family Division for revocation of an adoption order under the inherent jurisdiction – however exceptional the facts – is closed.

The court’s analysis identifies the germ of the error in Re W [2013] EWHC 1957 (Fam) (Bodey J), from which the misunderstanding “first appeared” and “became codified as received wisdom” (paragraph 50). In particular, Sir James Munby P in Re O [2016] EWHC 2273 (Fam) “accepted the existence of an inherent jurisdiction to revoke a valid adoption order without explanation or analysis” (paragraph 50). The Supreme Court separately explains (paragraph 86) that Wall LJ’s language in Webster v Norfolk County Council [2009] EWCA Civ 59 about the limited “scope for the exercise of judicial discretion” was concerned with the Court of Appeal’s curtailed discretion on appeal, not with any High Court inherent jurisdiction, and that it was the misreading of Webster in Re W and subsequent decisions that generated the error. X and Y thus corrects a judicial path dependency nearly thirteen years in the making.

2. It draws a clean and principled distinction between two senses of “inherent jurisdiction”

One of the most analytically valuable features of the judgment is the court’s careful disentangling of two quite different ideas that had become conflated in the case law. At paragraphs 79 – 86, the court explains that the references in Re F (R) (An Infant) [1970] 1 QB 385 to “inherent jurisdiction”, and Wall LJ’s language in Webster v Norfolk County Council [2009] EWCA Civ 59 about the limited scope for judicial discretion, were concerned with appellate and procedural powers – not with any substantive parens patriae jurisdiction to revoke adoption orders. They were references to “the court’s inherent powers which exist to enable the court to act effectively in the administration of justice” – used “as a procedural tool to extend time for an appeal, with the appeal then proceeding on standard legal principles” (paragraph 79).

This distinction – between substantive inherent/prerogative jurisdiction and procedural inherent powers to regulate appellate process – is one that practitioners and academics will need to assimilate. It has implications beyond adoption: any case in which the “inherent jurisdiction” is invoked will now invite scrutiny as to which conception is engaged.

3. It recasts the only route for challenging the original order: appeal, where there is an appealable error

The court is careful to emphasise that an adoption order is not immune from challenge. Where there is an appealable error – for example a fundamental breach of natural justice, serious procedural irregularity, fundamental mistake, or deception (In re J (A Child) (Adoption: Non-party Appeal) [2018] EWFC 8) – the proper route is an appeal, with an application to extend time if necessary. But a later welfare-based change of circumstances, however compelling, cannot be converted into an originating application under the High Court’s inherent jurisdiction. The longer the delay, the harder it will be to obtain an extension of time, because the child’s welfare and the public interest in the finality of adoption must both be weighed (paragraph 78). Separately, statutory mechanisms in section 55 (legitimation) and section 46(5) (re-adoption) can displace the original order’s effect, but these are not challenges to its validity.

Practitioners advising on post-adoption difficulty should now approach the problem through the following prism:

Type of complaint	Route	Viability post-X and Y
Procedural irregularity / natural justice breach at original hearing	Appeal (extension of time if required)	Unchanged
Fundamental mistake of fact / deception	Appeal (extension of time)	Unchanged
Welfare-based change of circumstances (relationship breakdown; identity rejection)	Originating application under inherent jurisdiction	Closed
Welfare deterioration requiring different placement	Children Act 1989 orders; re-adoption under s 46(5) ACA 2002	Available
Parental responsibility for de facto carer	Child arrangements “lives with” order (conferring PR); special guardianship	Available

4. It reasserts a strict constitutional posture on the prerogative

The judgment is a firm restatement of orthodox constitutional doctrine on the relationship between prerogative and statute. The justices quote approvingly from Lord Atkinson’s “pregnant passage” in De Keyser, Lord Reid in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, and the majority in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. At paragraph 55 the court articulates the principle with notable crispness:

“Where a matter is regulated by statute, use of the inherent jurisdiction is limited not only when the statute expressly says so, but by implication by the very existence of the statute itself. The inherent jurisdiction cannot be used to circumvent the legislation, either by achieving the same aim by a different procedural route, or by achieving different aims which are incompatible with the statutory scheme.”

This is a formulation that is likely to be cited well beyond adoption – in wardship, in inherent-jurisdiction deprivation of liberty cases involving 16- and 17-year-olds, and elsewhere. Read alongside the Supreme Court’s earlier decision in Re T [2021] UKSC 35 (which the court distinguishes at paragraph 72), the effect is to clarify the directionality of the Re T presumption: courts should be slow to find that Parliament has abrogated an inherent power that existed, but the anterior question is always whether the power existed at all.

5. It closes the door on the human rights workaround

The court addresses – obiter but pointedly – the Court of Appeal’s suggestion at paragraph 69 of its judgment that Convention obligations might, in an extreme case, compel revocation. The Supreme Court disagrees emphatically. Drawing on Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15; [2026] AC 63, the court reiterates that section 6 of the Human Rights Act 1998 “is prohibitory, not enabling” (paragraph 133) and cannot create a jurisdiction that does not otherwise exist. The court also rejects the substantive premise: adopted children are in no different position from natural children, and the state discharges its positive Convention obligations through the ordinary machinery of child protection, not through rewriting parental status (paragraph 134).

Practitioners who had quietly been preserving a Convention-based argument as a final ace should now understand that the Supreme Court considers it “impossible to imagine such an extreme situation arising as would justify the revocation of a valid adoption order in order for the court to comply with its Convention obligations” (paragraph 134). That is close to an in terrorem closure of the route.

6. Surrogacy: a live point, but not through this door

The court expressly declines to follow the Court of Appeal’s obiter olive branch towards surrogacy cases (paragraph 131). G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam) “involved different legislation” and concerned parental orders under section 54 of the Human Fertilisation and Embryology Act 2008, not adoption orders. Whether an inherent power exists to revoke a parental order remains genuinely open. But the X and Y reasoning – particularly on the historical absence of any prerogative power to reorder parental responsibility – will now cast a long shadow over that question too. Expect a future parental-order revocation case to face much stiffer headwinds than before.

What will change in practice

• Advice at the application stage: Prospective adopters can be told with renewed confidence that an adoption order is permanent. The court’s endorsement (at paragraph 126) of the policy reasoning – that weakening finality would “gravely damage the lifelong commitment of adopters” and deter recruitment – is material that will feed into recruitment literature and pre-adoption counselling.
• Adoption breakdowns: Where placements fail, the toolkit now clearly comprises (i) Children Act 1989 orders (section 8, care, supervision), (ii) special guardianship, (iii) name changes, and (iv) in extreme cases, re-adoption under section 46(5). The court effectively prescribes this as the full menu at paragraph 69.
• Post-adoption contact and social media: The Secretary of State’s intervention (reflected at paragraph 126) elevates the importance of finality precisely because open adoption and social-media reconnection have made adoptive relationships less insulated. The court’s endorsement of this point strengthens the argument for robust post-adoption support rather than legal reversibility.

Welfare analyses in placement-order proceedings should continue to emphasise the irreversibility of adoption. The Supreme Court reiterates that adoption is reserved for cases requiring “the highest level of intervention” that is “proportionate and necessary to meet the child’s welfare needs” (paragraph 15), subject to “particularly rigorous scrutiny by the courts to ensure that an adoption order is only made where nothing else will do” (paragraph 32). X and Y does not alter that test, but by definitively foreclosing welfare-based revocation it reinforces the finality that makes prospective scrutiny at the placement and adoption stage so important.

This is the constituency most directly affected. The court’s message to adopted adults who seek legal restoration of their birth-family identity is unambiguous: there is no judicial route. Parliament – and only Parliament – can create one. Practically, name changes, contact orders (while under 18), and symbolic/social recognition of de facto family relationships will have to suffice. The court acknowledges the distress this causes (paragraph 37) but treats it as a policy question for the legislature.

A legislative invitation?

Reading the judgment as a whole, one detects – particularly at paragraphs 128 and 132 – a careful signal that the court regards this as a matter squarely for Parliament. The justices record they have “no sense of regret” in their conclusion (paragraph 128), but the assertion that “[a]ny change in that state of affairs is a matter for Parliament” (paragraph 132, quoting the Court of Appeal) reads less as a deflection and more as an invitation.

The interveners’ evidence paints a nuanced picture. The Association of Lawyers for Children put adoption breakdown at 3 – 5% (paragraph 44). The ICFLPP referred to material suggesting that numbers may be increasing, potentially connected to the increasingly complex needs of children in care and stretched support resources (paragraph 43). CoramBAAF, while supporting the Court of Appeal’s approach, emphasised that disruption rates remain low and lower than placement changes for children who remain in care (paragraph 45).

With Y’s situation representing what may be an emerging cohort – young people in open or post-adoption-contact arrangements who, having returned to their birth families, experience their adopted legal status as a live source of distress rather than a settled identity – the policy case for a carefully circumscribed statutory revocation power is not fanciful. Whether Parliament takes up the invitation is another matter; the Tomlin Committee’s view that “the notion of revocation is inconsistent with the notion of adoption” (paragraph 105) has held the legislative field for a century.

Conclusion

X and Y will be cited for a generation. Its immediate effect is to close a supposed avenue of relief that had become, through judicial drift, a regularly pleaded (if rarely successful) route. Its deeper effect is threefold: it reaffirms the primacy of statute over residual prerogative power in a field heavily occupied by legislation; it offers a disciplined taxonomy of the different uses of “inherent jurisdiction”; and it reasserts the “peculiar finality” of adoption described by Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239; [1995] 2 FLR 1 as a feature, not a bug, of the statutory scheme. For the adopted young people at the heart of the case, and others like them, the court’s answer is that their distress, though real, is not remediable by the courts. That answer may not satisfy everyone, but – as the court makes clear – the alternative would be a judicial rewriting of a settled century-old legislative choice, and that is not the judiciary’s to make.