An adoption order made without the mother being physically present at the hearing has been pushed through. Although the High Court acknowledged that the making of the order amounted to a procedural irregularity and should never happen again, it went on to say the error did not constitute a “fundamental breach of natural justice.”

The reasoning used by the court — and which falls in line with the government’s very silly and irrational adoption policy (that it is for life, just because someone has said so in court and not because it is right for the child) — was that the mother knew the hearing was taking place, would not have been able to argue against the adoption order because she did not have the required permission to do so, and could not have prevented the adoption order from going through.

Lexis Nexis offers a very helpful summary of the case. We are reproducing an extract from that summary below for children, parents and families, but we highly recommend going to the source if you are a lawyer.

“In June 2019, following a finding that injuries sustained by the younger of three children had been inflicted by one of the parents, all three children were made the subject of final care and placement orders. In October and in January 2020, adoption applications were filed in respect of the youngest child and the two older children, respectively. In February, the parents’ applications for leave to oppose the adoptions were dismissed. In March, permission to appeal against that order was refused.

The mother was given notice of the hearing of the adoption application, which was to take place on 6 April. At 14.14 on 1 April, the adoption social worker sent a text message to the birth mother informing her that ‘due to the coronavirus outbreak [the] hearing [would] take place remotely by telephone’ and giving instructions for attendance by telephone. At 15.17 the same afternoon, however, the adoption social worker sent a further text message to the mother stating that she had ‘been informed by the court that HHJ Booth [was] excusing all parties from attending the hearing on Monday.’

On 6 April, HHJ Booth made the adoption order in respect of the three children in the absence of the mother.

In December, the Family Division dismissed the mother’s application to revoke the adoption order made by HHJ Booth. 

The mother appealed against the judge’s dismissal of the application to revoke the adoption order. “

The threshold for a “fundamental breach of natural justice” in adoption cases is weighted far too much in favour of the order being made for the order’s sake. The madness of this can be seen no better than in the now infamous Webster v Norfolk County Council case, where the parents were absolved of hurting their children and whose children wanted to return to their care, but were refused reunification by the court because “adoption is forever.”

The idea behind this irrational tilt is that adoption in these cases is seen as the only way to give a child guaranteed stability and love, but in the real world that means nothing to a child who is unlikely to be entering a home that can cater to his or her needs after the trauma of separation and most likely a long stint in care with all the damage that does. Issues of identity and self esteem will follow, making adoption a minefield for delicate, developing brains.

While adoption only works for a very small number of children, the fundamental issue is that our child protection system still does not work well enough to make sure that other, more viable and sophisticated options are considered first, such as initiatives that actively keep families together and children safe in their care. These models exist, and yet the system hardly every uses them.

Until we get to a point where the government and the care system understands we need to minimise damage in meaningful ways, rather than put a rubber stamp on it and hope for the best, here is the case law underlining our woefully inadequate government stance on adoption and setting aside adoption orders:

MacFoy v UAC  [1961] UKPC 49,  considered

B (adoption: jurisdiction to set aside), Re [1995] 3 All ER 333, [1995] 3 WLR 40 considered

Re K (Adoption and Wardship)  [1997] 2 FLR 228,  considered

Webster, Re; Webster v Norfolk County Council [2009] EWCA Civ 59, [2009] 2 All ER 1156, [2009] All ER (D) 106 (Feb) considered

Re Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam), [2016] 4 WLR 148, [2016] All ER (D) 45 (Sep) considered

Re J (A Minor) (Revocation of Adoption Order)  [2017] EWHC 2704 considered

Re J (Adoption: Appeal) [2018] EWFC 8, [2018] 4 WLR 38 considered

Re A (children) (remote hearing: care and placement orders) [2020] EWCA Civ 583, [2020] All ER (D) 14 (May) considered

HX v A local authority and others [2020] EWHC 1287 (Fam), [2020] All ER (D) 16 (Jun) considered

AX v BX and others (Revocation of Adoption Order)  [2021] EWHC 1121,  considered