X and Y (Children: Adoption Order: Setting Aside), Re [2026] UKSC 13

An adoptive mother, supported by her adopted daughters and their natural mother, sought revocation of valid adoption orders after the adoption broke down. The Supreme Court held that the High Court has no inherent (parens patriae) jurisdiction to revoke a validly made adoption order.

Background

X and Y, then aged five and four, were placed for adoption with AM in 2012 after a prolonged period in foster care, and an adoption order was made in May 2013. Contact with their natural mother, BM, was maintained and supported by AM. In 2021 both girls left AM’s home to live with BM. Y remained with BM, while X later moved to live with her natural father. The Court emphasised that the breakdown was not a consequence of AM rejecting either child; her motivation was to support them and give effect to their wishes and feelings. Care proceedings concluded in May 2023 with child arrangements orders under which X lived with her father and Y lived with BM, conferring parental responsibility on each resident natural parent.

In April 2023 AM applied to the High Court for revocation of the adoption orders under its inherent jurisdiction, on welfare grounds alone. The application was supported by X and Y (then 17 and 16 and Gillick competent) and by BM. Lieven J accepted that a category of case existed in which a power to revoke a valid adoption order arose under the inherent jurisdiction, but held that it could not be exercised solely on welfare grounds. She refused the application, while recording that revocation would have been in Y’s best interests because Y found the “legal fiction” produced by the adoption order deeply distressing. She permitted both young women to change their surnames to BM’s.

The Court of Appeal (Sir Andrew McFarlane P, Peter Jackson and Phillips LJJ) dismissed AM’s appeal. It held that a first instance court has no jurisdiction to set aside a validly made adoption order, whether under the inherent jurisdiction or otherwise. The proper route, where there is an appealable error, is an application for permission to appeal out of time. AM had abandoned reliance on Convention incompatibility before that court. She appealed to the Supreme Court, supported by BM, Y and, in some respects, X. The Secretary of State for Education intervened. Written interventions came from the International Centre for Family Law, Policy and Practice, the Association of Lawyers for Children and CoramBAAF, all of which supported the Court of Appeal’s conclusion.

Academic nature of the appeal

By the time of the hearing, X and Y were adults. It was accepted on all sides that no order under the parens patriae jurisdiction could be made in their favour. The Court nonetheless heard the appeal in the public interest, applying R v Secretary of State for the Home Department, Ex p Salem. It did so because other similar cases were likely and the question was a pure point of law.

The issue

The central question was framed at the outset:

“Does the court have any jurisdiction to set aside a validly made order for the adoption of a child other than by way of an appeal?”

AM’s case, advanced by Mr Nick Goodwin KC, had several strands:

• Where an adoption order is valid and no appeal is available, there must be an alternative non-statutory route to revocation, namely the High Court’s parens patriae jurisdiction.
• That route would be exercisable in highly exceptional circumstances of pressing need.
• Its exercise would involve balancing welfare against public policy considerations.
• It would not cut across the Adoption and Children Act 2002 (ACA 2002), because the scheme should not be read as precluding the inherent jurisdiction where a child’s welfare and identity needs would otherwise go unmet.

The statutory scheme

Lord Stephens and Lady Simler (with whom Lord Reed, Lord Sales and Lord Doherty agreed) began by analysing the ACA 2002. Under it, the court must make a once-and-for-all, prospective welfare assessment of the child “throughout his life” (section 1(2), (4)(c) and (6)). An adoption order extinguishes the parental responsibility of others (section 46(2)), and the adopted person is “to be treated in law as if born as the child of the adopters or adopter” (section 67(1)).

The Court identified a scheme of “increasing permanence”:

• placement orders may be revoked on a change of circumstances;
• special guardianship orders may be varied or discharged on a significant change of circumstances;
• adoption orders are subject to revocation only under the narrow legitimation exception in section 55, or by being superseded by a further adoption order (section 46(5)).

The Court endorsed Sir Thomas Bingham MR’s description in Re B:

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child.”

The Court stressed parity between adoptive and natural families. In cases not involving adoption, there is no mechanism by which natural parents or children can extinguish the parent-child bond, and “The statutory scheme replicates this situation in respect of adoptive parents and adopted children. The only gateway out of a legal parent-child relationship is adoption.”

The Court’s reasoning

Approach to jurisdiction

The Court rejected the premise that pressing need demonstrates the existence of jurisdiction:

“The submission appears to be that the existence of that pressing need means that the jurisdiction must exist. In our view, it is rather the other way around: if the jurisdiction exists in this context, it may be capable of being exercised in cases of pressing need.”

The first instance authorities

The Court agreed with the Court of Appeal that a line of first instance decisions reflected “a misunderstanding of the appellate authorities”. These decisions accepted an inherent power to revoke, notably Bodey J in Re W [2013] and Sir James Munby P in In re O [2016]. The misunderstanding had become “codified as received wisdom”. It was therefore necessary to return to first principles.

Nature and limits of the parens patriae jurisdiction

The Court traced the jurisdiction as an ancient Crown prerogative. It relied on Lord Reid’s historical approach in Burmah Oil Co Ltd v Lord Advocate:

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?”

Drawing on Attorney General v De Keyser’s Royal Hotel Ltd and R (Miller) v Secretary of State for Exiting the European Union, the Court held:

“The inherent jurisdiction cannot be used to circumvent the legislation, either by achieving the same aim by a different procedural route, or by achieving different aims which are incompatible with the statutory scheme.”

Even where it survives in relation to children, the jurisdiction is a residual protective one. It is exercised where needed to protect a child from significant harm and no statutory mechanism is adequate. Examples include child abduction, forced marriage and female genital mutilation, and end-of-life medical treatment (Abbasi).

Three fundamental objections

First, the parens patriae powers have never extended to reordering parental responsibility. Wardship vests parental responsibility in the court but leaves existing parental responsibility in place; it “does not (and cannot) reorder parental responsibility by extinguishing or transferring to ‘new’ parents the existing parental responsibility for the child.” Before the Adoption of Children Act 1926 there was simply no power to sever the legal bond with natural parents:

“There is no precedent in history for a prerogative power to change the parental relationship in the manner contended for by AM, BM and Y, so the conclusion must be that no such power existed. If the power to reorder parental responsibility has never existed, there is no basis on which this residual jurisdiction can be said to have been preserved.”

Mr Goodwin argued that creating adoptive parenthood differs from restoring natural parenthood. The Court rejected this: because of section 67, there is no difference, and any transfer back to a natural parent is achievable only by a further adoption order. BM’s alternative assertion, made by Mr Norton KC, that there had always been an inherent power to change parenthood was described as “unprincipled and unsupported”.

Secondly, the jurisdiction is protective and available only where necessary to protect a child because no adequate statutory mechanism exists. The Court observed:

“At best AM’s case seems to be that Y (and possibly X) needs to be protected from Parliament’s failure to provide a statutory means for revoking the adoption orders made in their cases. This is not a proper basis on which to exercise this protective jurisdiction.”

The Children Act 1989 offers ample powers to protect adopted children on adoption breakdown, all with welfare as the paramount consideration. These include:

• care orders and special guardianship orders;
• child arrangements orders and the regulation or termination of contact;
• re-adoption;
• permission to change surname.

Thirdly, even if the power had once existed, the ACA 2002 has occupied the ground. Exercising it would be “an impermissible attempt to side-step the clear scheme of the ACA 2002.” In re T (A Child) [2021] UKSC 35, which counsels caution before finding that Parliament has abrogated an inherent power, did not apply, because “here there never was a parens patriae power to extinguish and then transfer parental responsibility.”

Re B

The Court treated Re B [1995] as reinforcing its conclusion. It was the only appellate authority to address the inherent jurisdiction directly. Swinton Thomas LJ held:

“To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child.”

Although that passage was framed in terms of mistake, the Supreme Court held that “the principle enunciated is of general application: the court has no inherent jurisdiction to set aside a validly made adoption order.”

The appeal out of time cases

Several authorities relied on by AM concerned applications to the Court of Appeal for leave to appeal out of time:

• Re F: a natural mother wrongly treated as untraceable;
• Re M: consent vitiated by ignorance of the mother’s terminal illness;
• Re K: a fundamental breach of natural justice;
• Webster: leave refused despite a possible miscarriage of justice.

References in these cases to “inherent jurisdiction” denoted the court’s procedural power to extend time in the administration of justice, not the parens patriae jurisdiction. Wall LJ’s remark in Webster that orders would be set aside only “in highly exceptional and very particular circumstances” referred to the Court of Appeal’s powers and had been misinterpreted at first instance. Re W [2010] assumed, without analysis, a power to set aside, and afforded “no reliable basis” for the claimed jurisdiction.

The Court confirmed that an adoption order is not immune from challenge. It may be appealed, including out of time, where there is an appealable error. An extension is not granted lightly, the child’s interests and the public interest in irrevocability must be weighed, and the longer the delay, the harder it is likely to be to obtain an extension.

Legislative history: finality as a deliberate parliamentary choice

Although the jurisdictional conclusion disposed of the appeal, the Court also examined the legislative history in detail. The Hopkinson Report (1921) had recommended that adoption be revocable by the court on welfare grounds. The Tomlin Report (1925) disagreed:

“In our opinion the notion of revocation is inconsistent with the notion of adoption.”

The Court held that Parliament, in the 1926 Act, “followed the recommendation in the Tomlin Report” and maintained that choice in every subsequent Act. The only exception was the legitimation provision introduced in 1958 to address the stigma of illegitimacy. The Hurst Report (1954) had “emphatically rejected” any wider revocation power, warning that it would “undermine the position of adopted children by exposing them to hazards which do not exist for children living with their own parents.” The Houghton Report and the 2000 White Paper likewise emphasised permanence.

The Court identified the following policy considerations as remaining “as relevant as ever”:

• possible challenges to finality would damage the lifelong commitment of adopters;
• the stability of the adoptive family is central to the success of the placement;
• weakening finality risks deterring prospective adopters;
• open adoption depends on adopters’ confidence in the stability of their legal relationship with the child;
• finality is central to managing birth family contact in the social media era.

The Court expressed “no sense of regret” at its conclusion, even where welfare grounds might exist. Calibrated protective powers, including re-adoption (which “could have been used in this case”), are available, and an adopted child is in no different position from a natural child.

No residual scope for revocation

The Supreme Court disagreed with the Court of Appeal’s suggestion that narrow instances might remain. G v G, a surrogacy case, concerned a parental order under different legislation and provided no support. As to human rights, the Court relied on Abbasi: section 6 of the Human Rights Act 1998 “does not confer any power on the court which it does not otherwise possess”. The Court found it “impossible to imagine such an extreme situation arising as would justify the revocation of a valid adoption order” to comply with Convention obligations. It tested the point by analogy: a natural child whose self-identity was gravely compromised could not have their parents’ parental responsibility revoked, and the state would instead provide care and safeguarding. Arguments under the ECHR and the UNCRC were abandoned at the hearing. For completeness, the Court held that article 8 of the UNCRC protects identity “as recognised by law”, so that in the case of an adopted child, “it is the adopted identity which is recognised by law that must be preserved and respected.”

Practical significance

The decision authoritatively establishes that the High Court has no inherent, parens patriae or other non-statutory power to revoke a validly made adoption order, whatever the welfare considerations. It overrules in substance the line of first instance decisions (from Bodey J’s 2013 decision onwards) that had assumed such a power. It also closes the residual window left open by the Court of Appeal.

The practical consequences are clear:

• The only routes to unwinding an adoption are an appeal, including out of time, where there is a genuine appealable error such as a breach of natural justice, fraud or fundamental procedural irregularity; the section 55 legitimation exception; or a further adoption order.
• Where an adoption breaks down, practitioners must look to the Children Act 1989 toolkit, including care orders, special guardianship orders, child arrangements orders, the regulation of contact and changes of name, or to re-adoption, rather than to revocation.
• The judgment reaffirms parity between adoptive and natural parenthood and the century-old parliamentary commitment to the permanence of adoption.
• Any change to that position is a matter for Parliament.

Verdict: Appeal dismissed. The Supreme Court unanimously held that the High Court has no inherent (parens patriae or other) jurisdiction to revoke a validly made adoption order outside the statutory scheme of the Adoption and Children Act 2002. Challenges are limited to appeal, including appeal out of time, where there is an appealable error, the section 55 legitimation exception, or a further adoption order.

Source: X and Y (Children: Adoption Order: Setting Aside), Re [2026] UKSC 13