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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 7. Revocation
Adoption orders are considered final, subject to normal time-limited rights of appeal. Apart from some narrow exceptions, (for example, where an order was made in favour of one birth parent and that parent later marries the other birth parent (s.46(1) of the 1978 Act)), there is no statutory provision for revocation. In D v Grampian Regional Council 1995 S.C. (H.L.) 1, Lord Jauncey of Tullichettle at pg. 5H said that: 'an adoption order once made is revocable only in circumstances which will have no practical effect upon the child's day to day life'.
The leading Scottish case is J & J v C's Tutor 1948 S.C. 636, when the court refused to revoke or reduce the adoption. The adopters maintained that they had adopted under essential error on the basis of innocent misrepresentations, and had found after the adoption that the child was brain damaged at birth and suffered from mental disability. The court stated that adoption was not a contract between the adopters and birth parent, but a matter of the child's status. It could not be set aside because the adopters were misled into applying. J & J v C's Tutor was considered in a leading English case of Re B (An Adoption Order: Jurisdiction to Set Aside) [1995] 3 All E.R. 333. The Court of Appeal refused to set aside the 1959 adoption of B, whose birth parents were an English Roman Catholic mother and an Arab Muslim father, and who had been adopted by a Jewish couple. The court held it had no inherent power to set aside an adoption order where the procedures had been properly carried out.
On the other hand, courts have set aside adoptions where there have been mistakes or procedural irregularities. In Re M (Minors) (Adoption) [1991] F.L.R. 458, after allowing a late appeal by the birth father, the Court of Appeal set aside an adoption. The birth father had consented to a step-parent adoption for his two children, not knowing that the mother was terminally ill; and when she died three months after the order, the step-father was not able to care for the children, who returned to their birth father. In F v M 1999 S.L.T. 571 (also reported as M v S 1999 S.C.L.R. (Notes) 738 and ES Petitioner 1999 FamL.R. 26) the Inner House quashed an adoption order ten months after it was granted, having allowed a late appeal by the birth mother. This was a non-agency adoption application by the child's paternal aunt, and the sheriff had dispensed with the mother's agreement on various grounds, including that she could not be found. The mother only learnt about the adoption later and maintained that insufficient efforts had been made to contact her. The appeal court was satisfied that, looking at all the information, there was an issue about whether all reasonable steps had been taken to find her.
In some jurisdictions, adoptions can be revoked or discharged. In all Australian States and Territories, an order can be discharged if the adoption or consent to it was obtained by duress, fraud or other impropriety, or there is some other exceptional reason. In New Zealand, under s.20 of the Adoption Act 1955, discharge is possible if the order was the 'result of a mistake as to a material fact or…a material misrepresentation to the court or to any other person concerned'. The New Zealand Law Commission has recommended that the ground for discharge should be extended to allow an adoptee to apply, where s/he is an adult and 'the adoptive relationship has undergone a significant and irretrievable breakdown.': Adoption and its Alternatives, Report 65, September 2000, para. 461.
Consideration needs to be given as to whether the current position is sufficient to deal with all the situations which can arise, particularly where fraud or misrepresentation is alleged, or relationships have totally broken down. Allowing late appeals may deal with some situations, but may not be possible in other ones. If revocation is introduced, consideration would also have to be given to whether it would be available to young adoptees under 16.
If a limited right of revocation is introduced, any decisions should be based on the test for all other adoption decisions, namely that the child's/adoptee 's welfare throughout life is the paramount consideration.
QUESTIONS:
20. Should there be a limited right to seek revocation of adoption?
21. If so, what should the grounds be?
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