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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (Fam) (13 September 2016) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2016/2273.html Cite as: [2016] 4 WLR 148, [2016] WLR(D) 493, [2016] EWHC 2273 (Fam) |
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![]() ![]() |
OF
JUSTICE
FAMILY DIVISION
![]() ![]() Royal Courts ![]() ![]() Strand, London, WC2A 2LL |
||
B e f o
r e :
OF
THE FAMILY DIVISION
____________________
In the Matter ![]() ![]() ![]() ![]() ![]() ![]() |
||
(Case ![]() |
____________________
Osbornes
Solicitors LLP) for the applicant
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
____________________
OF
JUDGMENT APPROVED
Crown Copyright ©
Sir James Munby, President of
the Family Division :
Background
The facts
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 toread
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 Ireceived
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 makeout
what she was saying."
"I feel like a pieceof
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 settingout
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 descriptionof
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 butone
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 greatreluctance.
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 levelof
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 needor
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)
[2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view
of
Parker J in
Re
PW (Adoption) [2013] 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)
[2010] EWCA Civ 1535, [2011] 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) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] 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) [1995] 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) [2009] EWCA Civ 59, [2009] 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) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption
order
set aside in that case failed.
"The actof
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)
[2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:
"the adoption authorities show that the feelingsof
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) [1995] Fam 239 and Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 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.[2]
Costs
Note 1 Schedule 1, para 1(2), provides as follows:
Where, Note 2 Schedule 1, paras 4(6) and 4(8), provide as follows:
(6) Where an adoption 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]
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]