Webster (The Parents) v Norfolk County Council & Ors (Rev 1) [2009] EWCA Civ 59

Parents sought to overturn care, freeing and adoption orders concerning three children removed after one child’s fractures were attributed to non-accidental injury. Fresh medical evidence suggested scurvy caused the injuries. The Court of Appeal refused, holding adoption orders could not be set aside.

Facts

Mr and Mrs Webster had four children: A, B, C and Brandon. In November 2003, child B, then aged almost two, was admitted to hospital where six fractures were identified, including metaphyseal corner fractures and a rib fracture. B had been fed almost exclusively on soya milk for about twelve months prior to admission. Norfolk County Council concluded the injuries were non-accidental and issued care proceedings. On 20–21 May 2004, HH Judge Barham held at a finding-of-fact hearing that the injuries were non-accidental and caused by one or both parents. In November 2004, he made care orders and freed A, B and C for adoption. The children were adopted by December 2005 (A and B together, C separately).

When Brandon was born in May 2006 in Ireland, the local authority again issued care proceedings relying on the earlier findings. During those proceedings, the parents obtained fresh expert evidence (paediatric radiology, paediatric nutrition, paediatric overview) which strongly indicated that B’s fractures were attributable to scurvy and iron deficiency rather than abuse. In June 2007, Holman J discontinued the proceedings relating to Brandon, who remained with his parents. The parents then applied to the Court of Appeal for permission to appeal, out of time, against the 2004 care and freeing orders and the 2005 adoption orders, seeking to adduce fresh evidence.

Issues

The Court identified the following issues:

• Whether permission to appeal out of time should be granted against the care, freeing and adoption orders;
• Whether the fresh medical evidence satisfied the test in Ladd v Marshall [1954] 1 WLR 1489;
• Whether the Court had jurisdiction to set aside validly made adoption orders in circumstances where there had been no procedural irregularity, fraud or denial of natural justice but arguably a miscarriage of justice on the underlying facts;
• Whether Articles 6 and 8 ECHR compelled a different outcome.

Arguments

For the parents

Mr Peddie QC and Ms Hoyal submitted that the care orders and subsequent orders represented a serious miscarriage of justice. The expert evidence before Judge Barham had been dogmatic, no paediatric radiologist had been instructed, and scurvy had not been adequately investigated. Fresh medical evidence from multiple specialists indicated that B’s injuries were consistent with scurvy and iron deficiency. They acknowledged the legal difficulty in disturbing adoption orders but argued that flawed medical evidence amounted to a mistake in law and a denial of justice. They relied on Article 8 ECHR and the decision in Pini and Bertani v Romania [2005] 2 FLR 596.

For the local authority

Ms Thirlwell QC and Ms Langdale submitted that the parents had no locus to appeal adoption orders to which they were not parties; there was no inherent power to set aside validly made adoption orders absent procedural irregularity; the evidence did not satisfy the first limb of Ladd v Marshall because second opinions could have been obtained in 2004; and the medical evidence was not all one way.

For the guardian

Mr Howard QC argued that revoking the adoption orders would cause legal chaos and emotional turmoil to the children, whose Article 8 rights now centred on their adoptive families. He relied on Kearns v France [2008] 1 FLR 888 and emphasised the very limited circumstances in which adoption orders may be set aside.

Judgment

The Court of Appeal (Wall LJ, with whom Moore-Bick and Wilson LJJ agreed) refused the applications.

Nature of the Court’s function

Wall LJ emphasised that the Court of Appeal is a court of review, not a tribunal of fact. It could not itself decide whether B had suffered non-accidental injury or had scurvy. Its role was limited to deciding whether permission to appeal out of time should be granted under CPR 52.3(6).

Setting aside adoption orders

Wall LJ conducted a detailed review of the authorities, including Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, Re M (Minors) (Adoption) [1991] 1 FLR 458, Re K (Adoption and Wardship) [1997] 2 FLR 221 and Re K (Non-accidental injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181. He concluded that adoption orders, validly and regularly obtained, will not be disturbed save in highly exceptional circumstances, typically involving procedural irregularity, fraud, or fundamental breach of natural justice. A subsequent claim of factual miscarriage of justice, however serious, does not provide such a ground. He reproduced Swinton Thomas LJ’s observation in Re B:

To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child.

Wall LJ held that although the parents had sufficient interest to apply, the adoption orders could not be set aside.

ECHR

The Court considered Pini and Bertani, Görgülü v Germany, Kearns v France and related authorities, and held that the European jurisprudence did not assist the parents. The Article 8 rights of the adopted children now centred on their adoptive families, and the need for stability and permanence in adoption was recognised.

Ladd v Marshall

Wall LJ held that the fresh evidence did not satisfy the first limb of Ladd v Marshall: the expert opinions obtained in 2006–2007 could have been obtained with reasonable diligence in 2003–2004 by seeking second opinions.

The judgments of Judge Barham

Although Wall LJ expressed some reservations about the opening framing of the first judgment and the cursory treatment of welfare in the second, he concluded the judge was entitled to reach the conclusions he did on the evidence before him, which was effectively all one way.

Implications

The decision reaffirms the near-absolute finality of validly made adoption orders in English law. Even where subsequent evidence suggests that findings of fact underpinning the care and freeing orders may have been wrong, the Court of Appeal will not set aside adoption orders absent procedural irregularity, fraud or fundamental breach of natural justice. The public policy rationale is that adopters and adopted children must have security of status.

The case also underscores the importance of obtaining timely second opinions where parents strongly deny allegations of non-accidental injury, particularly where unusual features (such as a highly restricted diet) are present. Wall LJ endorsed the guidance in W v Oldham MBC [2005] EWCA Civ 1247 and Daniels v Walker [2000] 1 WLR 1382 that, in cases where pivotal expert evidence is not easily receptive to challenge absent another expert opinion, courts should be slow to refuse applications for a second expert.

Wilson LJ drew the moral that a hypothesis as to causation must not be dismissed simply because it would be highly unusual, and that where a child’s history contains a demonstrably rare feature, the possible nexus between that feature and the injuries must be subject to specialist appraisal at an early stage.

The judgment acknowledges that, if the parents’ account is correct, a grave miscarriage of justice occurred, but holds that the legal framework and the interests of the adopted children preclude reopening the orders. The decision is important for family practitioners, local authorities, experts, adopters and natural parents in understanding the limits of appellate intervention in completed adoptions.

Verdict: The Court of Appeal refused Mr and Mrs Webster’s applications for permission to appeal out of time against the care orders, freeing orders and adoption orders relating to children A, B and C, and refused permission to adduce fresh evidence. The adoption orders stood.

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

Source: Webster (The Parents) v Norfolk County Council & Ors (Rev 1) [2009] EWCA Civ 59