Revocation of Adoption

Background

The applicants, X and Y, were a same-sex couple who sought fertility treatment at St Bartholomew’s Hospital (the clinic). X gave birth to their first child, C1, in 2010. Both parents intended for Y to be a legal parent and believed they had signed all necessary HFEA consent forms. Years later, the clinic notified them that no signed Form PP (the partner’s consent to be a parent) could be found in their records.

On the advice of the clinic and their previous solicitors, who believed it was the only remedy, Y formally adopted C1 in 2014 to secure her legal status. However, following subsequent legal developments (specifically Re Case A), the parents realized they might have been legal parents all along and sought to revoke the adoption order while obtaining a formal declaration of parentage.

Contentions of the Parties

• The Applicants: X and Y contended that the adoption process had been “unwelcome, unwanted and intrusive”. They argued it was based on a fundamental mistake regarding Y’s legal status and created an unnecessary “stigma” of adoption for C1 compared to their second, non-adopted child.
• The Children’s Guardian: Strongly supported the application, stating there was “absolutely no need or justification” for the adoption order. The Guardian argued that a declaration of parentage better met C1’s welfare needs and reflected the family’s biological and social reality.
• The Clinic: Supported the application and apologized for the “obvious distress” caused by its “lamentable” record-keeping.

The Judge’s Decision

Sir James Munby, President of the Family Division, granted the declaration of parentage and revoked the 2014 adoption order. He ruled that Y had been the legal parent of C1 from birth and directed that the original birth certificate be returned to the parents. He further ensured that any future birth certificates would be “clean” and not marked as “Adopted”.

Reasoning of the Judgment

The court’s reasoning addressed both the parentage criteria and the high legal bar for revoking an adoption:

• Evidencing Consent: Although the physical Form PP was missing, the court found that the clinic’s “Treatment Checklist” (which had ticks next to “Female Consent to Treatment” and “Partner attended”) sufficiently evidenced that the form had been signed and subsequently lost by the clinic.
• Highly Exceptional Circumstances: The judge acknowledged that adoption orders are intended to be final and are only set aside in “highly exceptional” cases.
• Mistake of Law: This case was “unprecedented” because the entire adoption process proceeded under a “fundamental mistake of law”. Y was already, in fact and in law, C1’s mother when she applied to adopt.
• Reality vs. Fiction: Revoking the order did not involve uprooting the child; rather, it recognized a “legal and factual reality” and ended a “legal and factual fiction”. The judge concluded that public policy and “common humanity” demanded that the adoption be quashed to serve the child’s lifelong best interests.

Conclusion

Re Case O highlights the “transcendental importance” of accurate administrative records in assisted reproduction. By revoking a lawfully made adoption order, the court demonstrated that the lifelong welfare of a child and the truth of their legal identity must prevail over procedural finality when that finality is built upon a false legal premise.