In the recent High Court judgement of Re W (A Child)* the President of the Family Division, Munby J, dismissed an application for an adoption Order to be set aside on the basis that the biological father did not clearly establish a prima facie case of fraud or dishonesty against the adoptive parents.

The application was made by the biological father after he discovered that the adoptive parents were considering relocation to the USA. The biological father was disgruntled by this as he sought contact after the adoption was finalised. His case was that the adoptive parents had fraudulently concealed their intentions in order to influence the court prior to the making of the adoption order. He asserted that the adoptive parents had allowed the court to believe they would remain in the United Kingdom as this would not rule out post adoption contact.

However the adoptive parents had never expressed an intention to retain residence in the United Kingdom and it was in fact after the Order was granted that they ceased to be open about the possibility of relocating. The Adoption Order was granted without an order for contact so there were no provisions set by the Court for sustaining contact with the biological family save the presumption that it would be in the child’s best interest to assist her with understanding her status as an adopted person.

Within his judgment in this case President Munby confirmed that under the inherent jurisdiction of the High Court through Re B (Adoption: Jurisdiction to Set Aside), an adoption order can be set aside if fraudulent or dishonest representations or omission influenced the court’s decision.

‘An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud** .

If fraud or dishonesty is established the Respondent must prove that if the court knew of the truth the court would not have made an order of substantial difference as per Sharland v Sharland:

‘The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it known then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. But in my view, the burden of satisfying the court of that must lie with the perpetrator of the fraud. It was wrong in this case to place upon the victim the burden of showing that it would have made a difference’ ^.

Shevonne Weir (Paralegal)

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*Re W (A Child) (No 4) [2017] EWHC 1760 (Fam), 12 July 2017
**Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, 252
^Sharland v Sharland [2015] UKSC 60, [2016] AC 871, [2015] 2 FLR 1367 [33]

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