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Mother fails in Court of Appeal bid to revoke adoption order despite procedural irregularity

An application to revoke an adoption order should not be allowed despite a procedural irregularity at an earlier hearing, the Court of Appeal has ruled.

In I-A (Revocation of Adoption Order) [2021] EWCA Civ 1222 Lord Justice Baker said that in the case concerning three children and an unnamed local authority the irregularity “did not amount to a fundamental breach of natural justice” and left the mother involved still able to apply for leave to bring an application for contact.

Two older children had been placed in care following the discovery of a sustained a series of fractures on one of them.

When the mother gave birth to a third child an interim care order was made.

Following a finding that the injuries had been inflicted by one of the parents, all three children were made the subject of final care and placement orders by HHJ Booth.

Adoption applications were later made for all three, which the parents opposed.

These were listed for hearing on 6 April 2020. The mother was given notice of the hearing but five days beforehand the adoption social worker texted her to say pandemic restrictions meant the chairing would now be by telephone.

A further text a few hours later said HHJ Booth was “excusing all parties from attending the hearing on Monday. There will be no telephone hearing as previously directed”.

The mother then applied under the inherent jurisdiction for revocation of the care and placement and adoption orders because the final hearing was conducted without a physical, remote or hybrid oral hearing.

Baker LJ said: “I am entirely satisfied that the decision to make an adoption order without a hearing in the absence of the mother was indeed a procedural irregularity.

“The plain meaning of FPR 14.16(1) is that the mother was entitled to be present at the hearing…it was not a matter of the mother being under an obligation to attend the hearing. She had a right to be present.

“In the circumstances, it was not a question of Judge Booth excusing the mother from attending…in any event, the judge did not merely excuse the mother's attendance from the hearing. In effect, he cancelled the hearing altogether.”

Baker LJ said the judge's decision to proceed to make the adoption order without a hearing attended by the mother “was a procedural irregularity which must not be repeated”.

But he would not revoke the orders as “the mother did not have permission to oppose the adoption. There was nothing she could have done to prevent the adoption going through…[she] was not having direct contact and had not sought leave to make an application under s.541A.

“In that regard, her position now is no different from how it was before the adoption order was made. She is still at liberty to apply for leave to bring an application for contact and in determining such an application the court would have regard to the relevant circumstances.”

Mark Smulian

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