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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Case O (Human Fertilisation and Embryology Act 2008)  EWHC 2273 (Fam) (13 September 2016)
Cite as:  4 WLR 148,  EWHC 2273 (Fam),  WLR(D) 493
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Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|In the Matter of the Human Fertilisation and Embryology Act 2008|
Ms Dorothea Gartland (instructed by Bevan Brittan LLP) for Barts Health NHS Trust
Ms Deirdre Fottrell QC and Mr Thomas Wilson (instructed by Russell-Cooke LLP) for the child's guardian
Hearing date: 26 July 2016
Crown Copyright ©
Sir James Munby, President of the Family Division :
i) The treatment which led to the birth of C1 was embarked upon and carried through jointly and with full knowledge by both the woman (that is, X) and her partner (Y).
ii) From the outset of that treatment, it was the intention of both X and Y that Y would be a legal parent of C1. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.
iii) From the moment when the pregnancy was confirmed, both X and Y believed that Y was the other parent of the child. That remained their belief when C1 was born.
iv) X and Y, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed C1 to be, showing both of them on the birth certificate as C1's parents, as they believed themselves to be.
v) The first they knew that anything was or might be 'wrong' was when, some years later, they were contacted by the clinic.
vi) X's application to the court is, as I have said, wholeheartedly supported by Y.
The issues parentage
"[In print] Attended [added in manuscript √]
"[In print] Partner attended [added in manuscript √]
"[In print] Female Consent to Treatment [added in manuscript √]
"[In print] Male Consent to Treatment [amended in manuscript to read Female and added in manuscript √]"
The issues adoption
"They told me that I was not [C1's] legal parent I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [C1's] mummy. This still remains very raw."
X remembers Y telephoning:
"[She] called me, [she] was sobbing and I could barely make out what she was saying."
"I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it's like I no longer feel like I am [C1's] mummy. I was [C1's] mummy but now I am [C1's] adoptive mummy. We do not want [C1] to be different to [C2] We feel disappointed and let down by Barts. We planned our family carefully. We want [C1's] parenthood to be what it should have been. Adoption is not what we wanted."
X's words are equally raw:
"It broke my heart when I had to hand in [C1's] original birth certificate. I am so upset that [C1] now has a different status as an adopted child. [C1] is now different to [C2], when [this] should not have been."
"This application is quite unique." After setting out the circumstances, the writer continued: "The couple have sought legal advice and have been advised that the only way to remedy this is for [Y] to formally adopt [C1]. The couple have found this situation extremely distressing and in all honesty do not want this process. However they want everything for [C1] to be proper and legal and for [Y] to be recognised legally as [C1's] parent, as was always intended."
"The description of that day was very emotional. "There were lots of other couples there celebrating. It was a special day for those families. It was a miserable day for us, a defeat, a horrible occasion.""
"[The adoption] was an unwelcome, unwanted and intrusive process but one in which [Y] and [X] felt compelled to participate for they wanted legal certainty for [C1] and were told they had no other options. They are now, understandably, further distressed to learn that other remedies may have been available to them. They are seeking a Declaration of Parentage and a revocation of the adoption order. I unequivocally support their applications.
The adoption application was made with great reluctance. Particularly cruel was having to hand in the original, and very precious, birth certificate. "We are private people. It was horrible having to talk to strangers about such a personal part of our lives. It was like being public property." [Y] talked about being asked to leave the room by the Cafcass Reporting Officer who witnessed [X's] consent. She described sitting in the kitchen and crying."
"[C1] now has a new birth certificate and a new status as an adopted child something [Y] and [X] now know to be completely unnecessary, having been made aware that an alternative could have been made available to them [They] feel a level of stigma about the adoption and an acute awareness of [C1's] difference to [C2]. They are concerned that [C1] will worry about why [C1] was adopted and [C2] is not. They are concerned about how to explain this They are upset and angry on [C1's] behalf and anyone hearing their account cannot help but be moved. "We are honourable, honest people. We believed the system and we did what we were told." They are disappointed that other professionals at the time did not question the adoption process or suggest they seek alternative advice. They feel as if the adoption was entered into under false pretences. I consider their sentiments are both understandable and entirely justified and that [C1] should not have been adopted."
"However, from [C1's] perspective, I can identify absolutely no need or justification for an adoption order, given that a realistic alternative would certainly have been pursued at the time had the parents received different legal advice On [C1's] behalf, I have no hesitation in recommending that the court revoke the adoption order and replace it with a Declaration of Parentage the latter order being one that will equally meet [C1's] welfare needs and interests. It will afford [C1] the permanence and security that all children should have, and will give effect to the legal relationship that had always been intended when the parents had the fertility treatment. It will remove the unnecessary stigma of [C1's] status as an adopted child and afford [C1] parity with [C2]."
The guardian concludes with the hope that the original birth certificate be returned, this document having, as she says, "enormous significance" for X, Y and C1.
i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order)  EWHC 1957 (Fam),  2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K  EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption)  1 FLR 96, para 1.
ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose)  EWCA Civ 1535,  1 FLR 2153, paras 11-12.
iii) However, "The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside "only in highly exceptional and very particular circumstances"": Re C (Adoption Proceedings: Change of Circumstances)  EWCA Civ 431,  2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children's Guardian)  EWCA Civ 59,  1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K  EWHC 2316 (Fam), para 14, "public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so."
iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside)  Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children's Guardian)  EWCA Civ 59,  1 FLR 1378).
v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children's Guardian)  EWCA Civ 59,  1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.
"The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents."
The other is that of Hedley J in G v G (Parental Order: Revocation)  EWHC 1979 (Fam),  1 FLR 286, para 33:
"the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside)  Fam 239 and Webster v Norfolk County Council and the Children (by their Children's Guardian)  EWCA Civ 59,  1 FLR 1378, was immeasurably greater than here and it availed them nothing."
C1's birth certificate
i) When an adoption order is quashed by the court (i) the marking "Adopted" on the register of the child's birth is "cancelled", ie deleted; and (ii) the words "Adoption Order Quashed" are added: see Schedule 1, para 4(6) of the Adoption and Children Act 2002. (At the same time, the entry in the Adopted Children Register is cancelled.)
ii) Any certificate of the entry in the register of births which is subsequently issued will not reproduce either the deleted annotation or the additional annotation: see Schedule 1, para 4(8) of the Adoption and Children Act 2002. In other words, the original particulars will appear on the birth certificate without any reference to adoption.
iii) As an administrative process, a pencil note is usually made on the register, under the annotations, stating "Neither this note nor the above notes should be reproduced in any certificates issued." This is a purely administrative marking to ensure that Schedule 1, para 4(8) of the Adoption and Children Act 2002 is complied with.
Note 1 Schedule 1, para 1(2), provides as follows:
Where, on an application to a court for an adoption order in respect of a child, the identity of the child with a child to whom an entry in the registers of live-births or other records relates is proved to the satisfaction of the court, any adoption order made in pursuance of the application must contain a direction to the Registrar General to secure that the entry in the register or, as the case may be, record in question is marked with the word Adopted. [Back] Note 2 Schedule 1, paras 4(6) and 4(8), provide as follows:
(6) Where an adoption order is quashed or an appeal against an adoption order allowed by any court, the court must give directions to the Registrar General to secure that
any entry in the Adopted Children Register, and
any marking of an entry in that Register, the registers of live-births or other records as the case may be, which was effected in pursuance of the order,
(8) A copy or extract of an entry in any register or other record, being an entry the marking of which has been cancelled, is not to be treated as an accurate copy unless both the marking and the cancellation are omitted from it. [Back]
Note 1 Schedule 1, para 1(2), provides as follows: Where, on an application to a court for an adoption order in respect of a child, the identity of the child with a child to whom an entry in the registers of live-births or other records relates is proved to the satisfaction of the court, any adoption order made in pursuance of the application must contain a direction to the Registrar General to secure that the entry in the register or, as the case may be, record in question is marked with the word Adopted. [Back]
Note 2 Schedule 1, paras 4(6) and 4(8), provide as follows: (6) Where an adoption order is quashed or an appeal against an adoption order allowed by any court, the court must give directions to the Registrar General to secure that any entry in the Adopted Children Register, and any marking of an entry in that Register, the registers of live-births or other records as the case may be, which was effected in pursuance of the order, is cancelled. (8) A copy or extract of an entry in any register or other record, being an entry the marking of which has been cancelled, is not to be treated as an accurate copy unless both the marking and the cancellation are omitted from it. [Back]