Re Webster [2009] EWCA Civ 59, [2009] All ER (D) 106 (Feb)
Court of Appeal, Civil Division Wall, Moore-Bick and Wilson LJJ, 11 February 2009
The parents were a married couple with four children, born between January 2000 and May 2006. In November 2003, the second oldest, B, was admitted to hospital and found to have suffered a number of fractures. He had also suffered from a feeding problem and for at least a year had had only soya milk.
The local authority took the view that B’s injuries were non-accidental, and had been caused by one or both of the parents. At a finding of fact hearing in May 2004, a local circuit judge agreed with the authority’s view and made care orders in relation to the three children that the parents then had. He also freed the children for adoption and in that respect dispensed with the consent of the parents.
In May 2006, the fourth child was born. In 2007, the evidence arose indicating that B might not have had deliberate injuries but that his fractures were attributable to scurvy and/or iron deficiency as a result of consuming only soya milk. As a result care proceedings extant against the fourth child were discontinued, and the parents applied to the Court of Appeal for permission to appeal against the adoption and related orders made in respect of the first three children.
Wall LJ:
The critical question was whether or not it was open to the Court of Appeal in 2009 to set aside the adoption orders. Counsel for the parents sensibly acknowledged the difficulties which they faced. They recognised that adoption was the process whereby a child became a permanent and full member of a new family, and was treated for all purposes as if born to the adopters.
Counsel further recognised that the court would be reluctant as a matter of public policy to set aside adoption orders. That, they accepted, was because if prospective adopters thought that natural parents could, even in limited circumstances, secure the return of a child after an adoption order had been made, that could have a dramatic effect on the number of people putting themselves forward as prospective adopters. Adoption orders had been perceived as final, and as putting the adoptive parents fully in control.
So the parents were constrained to fall back on the facts. If the true facts had been known, the three children would not have been freed for adoption, and would not have been adopted. The injustice, therefore, remained.
His lordship held, however, that the public policy considerations relating to adoption, and the authorities on the point—which were binding on the Court of Appeal—simply made it impossible for the court to set aside the adoption orders even if, as the parents argued, they had suffered a serious injustice.
The instant case was one in which the court had to go back to first principles. Adoption was a statutory process. The law relating to it was very clear. The scope for the exercise of judicial discretion was severely curtailed. Once orders for adoption had been lawfully and properly made, it was only in highly exceptional and very particular circumstances that the court would permit them to be set aside. His lordship considered Re M (minors) (adoption) [1990] FCR 993; Re B (adoption: jurisdiction to set aside) [1995] 3 All ER 333. He also considered the parents’ right to a fair trial under Art 6 of the European Convention on Human Rights and the right to respect for private and family life under Art 8. Those provisions and relevant case law did not assist the parents in the instant case.
If, as was the case, the adoption orders could not be set aside, there was no point in permitting a re-opening of the judgments preceding them. From the parents’ point of view, that was unsatisfactory, since they would not have had the opportunity to clear their names. But the court had to ask the question: what would be the point of re-opening the proceedings? The fourth child was living at home with them. The proceedings in relation to him had been discontinued. The proceedings in relation to the first three children had resulted in adoption orders which could not be set aside. There was, accordingly, no further role for the court to play. The applications would be dismissed on that ground. There was a second ground on which permission would also have been refused. None of the evidence on which the parents now relied would have met the first of the three tests in Ladd v [1954] 3 All ER 745. The evidence could have been obtained with reasonable diligence for use at the trial.
His lordship concluded that in any system operated by human beings, mistakes would occur, whatever systems were put in place to reduce or eliminate them. In the instant case, his lordship was satisfied that everybody had acted in good faith, and in particular that the doctors who had advised the judge below had given him their honest, professional opinions.
The application would be refused.
Lords Justices Moore-Bick and Wilson LJJ agreed.
