B (A Minor) [1995] EWCA Civ 48

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
FAMILY DIVISION
(THE PRESIDENT, SIR STEPHEN BROWN)
FAFMF 94/0749/F
[1995] EWCA Civ 48Case No Case No:Venue Royal Courts of Justice, Strand, London WC2
Between
B (A Minor)
Before
The Master of the RollsSir Thomas BinghamLord Justice Simon BrownLord Justice Swinton ThomasMR. A LEVY QC & MR T COMPTON (Instructed by Messrs. White & Sherwin, Surrey) appeared on behalf of the AppellantMR. J HOLMAN QC, Amicus Curiae was instructed by The Official Solicitor)Date 17 March 1995

LORD JUSTICE SIMON BROWN:

My

[1]sympathy for this appellant is profound. It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim's son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group. I cannot think that, had the true circumstances been known at the time, anyone concerned would have permitted this order to have been made, not the Roman Catholic mother, nor the adoptive parents, nor the Court. My Lord has pointed out that when in 1968 the Rosenthals were told by the Beth Din that the appellant was not Jewish, so far from taking steps to set aside the adoption order, they instead had him formally received into the Jewish faith and community. So they did, but it must be remembered that at that stage they had learned no more than that the appellant's mother was not Jewish (or perhaps even as little as that, because of that, neither in Jewish law was her son). They continued to believe that the appellant's father was Jewish and indeed never themselves learned the contrary (save only for Mrs. Rosenthal at the very end of her life). I therefore have no difficulty in accepting Mr. Levy, QC's basis premise here that there was indeed a fundamental mistake made that went to the very nature of the 1959 placement. The question before us, however, is whether now, some 35 years later, anything can be done about that mistake at the suit of the adopted child himself. The President ruled that no ground exists here for setting aside this adoption order, regularly made as it was in the exercise of the Court's jurisdiction under the Adoption Act 1958: the Court simply has no power, no jurisdiction, to do any such thing. Mr. Levy, QC submits to the contrary, that the Court has an inherent power to set this order aside. There are essentially two strands to his argument. First, Mr. Levy points to the statutory regime operating in Australia and New Zealand under which it is plain that, in a case such as this, the Courts would indeed have a discretion to discharge the adoption order - for example, in New Zealand under section 20 of their Adoption Act 1955, upon it being established that the order "was made by mistake as to a material fact or in consequence of a material misrepresentation to the Court or to any person concerned". That, he submits, demonstrates that no necessary incompatibility arises between such an approach and the proper integrity of an adoption scheme. Our Courts ought accordingly, despite the absence here of any such statutory power, to recognise an inherent jurisdiction to achieve a similar result. Secondly Mr. Levy submits that the English authorities do in fact already suggest the existence of such a jurisdiction. He relies in particular upon certain dicta in In re F (R) (an infant) (1971) QB 385 and, above all, upon Re M (1991) 1 FLR 458. Neither strand of the argument can I accept. Tempting though it is to come to the aid of this appellant in his plight, I too have reached the clear conclusion that we cannot, that to do so would involve a radical and impermissible distortion of the long established adoption regime in this country. As to the contrasting position under Australian and New Zealand law, I accept Mr. Holman, QC's basic submission that that is by clear design: wisely or otherwise they have always preferred a less final adoption regime. Our 1958 Act, the precursor of the existing 1976 Act, can hardly have been enacted in ignorance of the 1955 Act in New Zealand. And when one comes to analyse the English authorities none of them in the end seem to me to lend any true support to the appellant's case. The only ways of challenging adoption orders - save in the narrow circumstances provided for by sections 52 and 53 of the 1976 Act - are by certiorari or appeal (if necessary, by leave to appeal out of time). R v Leeds City Justices (ex parte Gilmartin) (1951) CLY 4853 is an example of a successful challenge by certiorari on the grounds of procedural irregularity - the concealment of the father's address and the consequent failure to notify him of the proceedings. Other cases of procedural irregularity have been pursued by way of appeal out of time - see for example In re F (R) (1970) 1 QB 385 and In re RA (1974) Family Law 131. Re M (1991) 1 FLR 458 was another case of a successful appeal out of time, albeit there on a different ground, that of mistake. In all the cases which have proceeded by way of appeal the challenge has, of course, gone direct to the appeal court itself (in Re RA , the Divisional Court of the Family Division). Contrast the present case. The Scottish case of J and JvC's Tutor (1948) SC 636 involved a claim for reduction - a process akin to our judicial review. (No appeal, of course, was open to the claimants; they it was who had obtained the adoption order in the first place.) The ground of challenge was mistake. It failed. So too, I believe, would it have failed here. As was held by this Court in R v West Sussex Quarter Sessions ex parte Albert and Maud Johnson Trust Ltd (1974) 1 QB 24 (Orr and Lawton, LJJ, Lord Denning, MR, dissenting), certiorari is not available to quash a decision of an inferior tribunal merely on the ground that fresh evidence which might have affected the result has been discovered after the trial. It is well established that certiorari is limited to cases where it is shown that there have been defects or irregularities at the trial which vitiated the proceedings. Fresh evidence can accordingly be admitted of perjury or fraud which by their nature vitiate the proceedings. It is not, however, sufficient to show that a mistake had been made. It is, in short, one thing to allow an appeal (even an appeal out of time) on the ground of mistake; quite another to recognise it as a broad general basis of challenge available on judicial review or upon such unique form of process as is now before us. And, indeed, even upon appeal, as this Court made very plain in Re M , only rarely will an adoption order be set aside on the ground of mistake: there are, as my Lord's judgment has made plain, compelling reasons for treating adoption orders as of peculiar finality. Had the appellant's mother discovered the nature of the placement and herself appealed within a short time of the order being made, then, particularly if her appeal was supported by the Rosenthals, it might well have succeeded. But today, even supposing (contrary to the fact) that the appellant himself had been a party to the order and thus was entitled to appeal against it, it is inconceivable that any court would now grant him leave to appeal out of time and proceed to discharge the order. Exceptional though this case undoubtedly is and strong though the appellant's grievance, more important still is the integrity of the adoption system: its inviolability must be the ultimate imperative. For these reasons, in addition to those given by my Lord, I too would dismiss this appeal. THE MASTER OF THE ROLLS: Like my Lords, I have the greatest possible sympathy with the appellant in this appeal, who finds himself in a position of unusual difficulty through no fault of his own. I had hoped that his difficulty might be alleviated by a change of name and an application under section 56 of the Family Law Act 1986, but he feels that these expedients will be of little help to him in his predicament and he has no doubt considered the possible courses of action open to him very carefully. 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. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents. The Adoption Act 1976, in sections 52 and 53, makes provision for revocation and annulment of adoption orders. It is, however, noticeable that these provisions are very narrowly drawn, and no general challenge is permitted to adoption orders (otherwise than by way of appeal in the usual way). The narrowness of these provisions contrasts with the terms of certain statutes in New Zealand and Australia which make provision for a much wider basis of challenge. One can only assume that the narrow challenge provided for in the 1976 Act is the result of deliberate decision, the inference being that the legislature thought it undesirable to open the door to any-wider ranging application. The courts have, as it seems to me, been very strict in their refusal to allow adoption orders to be challenged (otherwise than by way of appeal). The clearest example of this strict approach is perhaps to be found in J and JvC's Tutor [1948] SC 636. That was a case of very clear and fundamental error, and also a case of extreme hardship viewed from the adoptive parents' point of view. Before adopting the child in question, the adoptive parents had been assured that the child had been medically examined and pronounced fit and healthy. A short time after the adoption, when they were prompted to have the child medically examined themselves, they learned that the child had sustained a severe brain injury at birth, which had resulted in amentia associated with epileptic manifestations and retarded physical development, with doubt as to whether the child had normal hearing and sight, and a prognosis that the brain of the child would never develop and that the child would never be other than wholly mentally deficient. Despite these facts, the Court of Session unanimously rejected a petition by the adoptive parents for the revocation of the adoption order, holding that it was no ground for doing so that the adoptive parents had been innocently misled into adopting the child. 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. None of these situations pertains here. No party to the adoption proceedings has at any stage appealed against the order. The order was regularly made, and there was no procedural irregularity of any kind. It is not suggested that any party to the proceedings deliberately misled the court which made the adoption order. It may be that the matron to whom my Lord has referred was disingenuous in explaining the background to the adoptive parents and the Children's Officer, but there exists at least a possibility that she was simply confused. I was at first inclined to think that the recent case of Re M (Minors) (Adoption) [1991] 1 FLR 458 was difficult to reconcile with earlier authority. On further examination of the case, I think this is not so. It was an application to appeal out of time (and an appeal) by the natural father of the children, who had been a party to the earlier proceedings which he now sought to set aside. Time being extended, he was permitted to adduce evidence which put a very different complexion on the facts as they were understood by the judge at the time when the order was made. This being so, it does not appear that the members of the Court of Appeal were opening the door to a new and wide-ranging jurisdiction to set aside adoption orders, but were simply showing a measure of indulgence to an appellant seeking an extension of time. In granting that indulgence the Court were no doubt alive to the interests of the children, which would in the circumstances described to the Court be much better served by revocation of the adoption order. Even so, the Court was at pains to emphasize the exceptional nature of the case which had led it to allow the application and the appeal and to discourage reliance on the decision as a precedent. I do not think this decision can properly be treated as modifying in any way the earlier authorities, which were not in any event cited, so far as one can tell from the report. In the end, and much as I would like to help the appellant, I feel that it is impossible to do so without creating a discrepancy between English and Scottish authority, which is in itself highly undesirable in a field such as this, and without a risk of disturbing in a potentially mischievous way the basic assumption upon which the adoption regime is founded in this country. For these reasons, in addition to those which my Lords have given, I feel reluctantly bound to dismiss this appeal. Appeal dismissed. Legal Aid Taxation. Leave to appeal to the House of Lords refused. LORD JUSTICE SWINTON THOMAS : This is an Appeal from a decision of the President, Sir Stephen Brown, of the 29th April, 1994, whereby he refused an application by the Appellant, Mr Jonathan Bradley, to set aside an Adoption Order made in respect of him on the 20th July 1959. The Adoption Order was, therefore, made more than 35 years ago. The Appellant was born on the 8th March 1959, and is now aged 36. His natural mother is now married. She is English and at the material time she was a Roman Catholic. The father was and is an Arab from Kuwait and by religion Muslim. The mother and the father were not married, and in 1959 he knew nothing of the adoption or indeed of the pregnancy. Nothing turns on his ignorance. The prospective adoptors were Sydney and Bessie Rosenthal who were both Jewish. Bessie Rosenthal was born on 4th January 1911 and Sydney Rosenthal on 25th October, 1913. They married on 7th November 1948. After Jonathan's birth on 8th March 1959, his mother wished to place him for adoption. In 1959 the attitude of society generally towards unmarried mothers and illegitimacy was somewhat different from the general attitude today. The mother was, for natural reasons, anxious that the arrangements for the adoption should take place in a part of the country where she was not known and, insofar as it was possible, anonymously. On the advice of a Priest she made contact with the Doris Court Nursing Home in Manchester where the Matron was a lady called Miss W. Doris Court was mainly a nursing home, but it was also known that unmarried mothers could go to the home and receive help regarding the birth of their babies, and, if they wished, Miss W would make arrangements for the baby to be placed for adoption. In 1959 there was less formality in relation to adoptions than there is today. However, the Children's Department of the Local Authority were given proper notice of the proposed adoption, and a Miss Crossthwaite was appointed as Guardian ad Litem. There is no suggestion, and certainly no evidence, that Miss W was motivated other than by a desire to serve the best interests as she saw them of the babies in her care and prospective adopters. There is evidence that no money changed hands.[2]The mother left Jonathan at Doris Court on 27th March, 19 days after his birth. There is some confusion as to when Jonathan was circumcised and a point is taken as to what was said and done by Miss W in relation to his circumcision. There is a document dated 4th April, 1959 which was signed by Miss W and states:
"This is to certify that Baby Isaac (Ian) Rosenthal, son of Mr and Mrs Sydney Rosenthal, of 52 Portmann Road, Liverpool 15, was circumcised on 17/3/59 in accordance with the Jewish faith. The operation was performed by Dr R. Friedlander."
[3]Certainly that date must be wrong and misleading because Jonathan and his mother did not arrive at the nursing home until 27th March.[4]In an Affidavit sworn on 17th June 1993, Jonathan's mother said that she told the Nursing Home that Jonathan's father came from the Persian Gulf area, and that he may have come from a Gulf State. She says that she did not give them the name of Jonathan's father, and never indicated that the father was Jewish. She says that if she had known that Jonathan was to be placed with a Jewish family she would have had serious reservations. She says that she would also have had reservations if she had known that Jonathan was to be placed with working class parents. She had been led to believe that he was going to middle class parents and she wanted him placed with an educated family. She says that she would also have had reservations about the placement had she known of the age of the adopters. She thought they were in their 30's. She feels that she was misled. It is, perhaps, relevant to note that in that Affidavit the mother states that she would have had a number of reservations in relation to this particular placement. She says that she did not say that the father was of Syrian/Jewish stock. Jonathan was placed with Mr and Mrs Rosenthal on 4th April 1959. On the adoption application they gave their dates of birth as 1916 and 1917 as opposed to their correct dates of birth, 1913 and 1911. It would have appeared that they were aged 45 and 48 as opposed to being 48 and 53. There can be no doubt that Mr and Mrs Rosenthal thought that the father of the baby was Jewish. On 27th May 1959, the adopters issued their Originating Application for an Adoption Order. On 16th July the Children's Officer filed his Report.[5]Amongst other things he said:
"The Applicants are overjoyed with the infant, who has thrived in every way since his placing on 4th April, as can be expected from all the love and care bestowed on him"
[6]On 20th July 1959, His Honour Judge Fraser-Hanson made the Adoption Order in favour of the adoptive parents, the subject matter of the present Application.[7]In 1968 the Rosenthals discovered that Jonathan was not Jewish and this came as a considerable shock to them. This came to light as a result of enquiries being made by the Beth Din. Contact was made with Miss W and contemporaneous Memoranda of conversations with her show that in 1968 she said that the mother was not Jewish and that the father was a Jewish boy called David Bloom. Clearly those statements were incorrect. The Rosenthals indicated that Miss W. had told them that Jonathan was Jewish and said that if they had not believed that he was Jewish they would not have had him. They had brought him up as a Jew in the Jewish tradition and he had done exceedingly well. Clearly, they felt that they had been badly misled. Miss. W. replied that she did not consider that the Rosenthals had been misled as she had told them that the baby was half Jewish, having a Jewish father.[8]Although the information received by the Rosenthals came as a shock to them, far from taking steps to set aside the Adoption Order, they continued to care for Jonathan as their son and he was received into the Jewish Faith and community on 31st March 1970. It is true that they were not then in possession of the full facts, in particular that the father was a Muslim Arab. Nonetheless it is my view, and it may have relevance to the present application, that had the Rosenthals applied to set aside the Adoption Order following the information that they received in 1968, they would have had no prospect whatsoever of doing so. Equally the mother, had she been appraised of all the facts in 1968, would have had no prospects of setting the Order aside, then, let alone in 1994.[9]The Order had been made and the mother had been given proper notice of the proceedings. Jonathan had by then been living with the Rosenthals for 11 years as their adopted son and misinformation given to them, whether innocently or deliberately, as to the religious background of the baby could not, in my view, have amounted then to a ground for setting aside the Order made on the 20th July 1959. In the event, far from attempting to set aside the Order, they approbated it, and continued to bring up Mr Bradley as their son.[10]Having been received into the Jewish Faith on 31st March, 1970, Mr Bradley continued to be brought up in that faith. In 1983 he graduated from Leeds University with a degree in Semitic Languages and Literature. In 1978 he began to make some enquiries about his background. In 1986 he decided to emigrate to Israel, and he at once ran into difficulty. People in Israel assumed that he was an Arab. He was suspected of being a spy. He was asked to leave and return to this country.[11]He was then told that he was persona non grata in Israel. He continued his researches into his background. On 13th April 1988, Sydney Rosenthal died, and Bessie Rosenthal died on 28th February 1991. On the death of his adoptive mother he was bequeathed a legacy of £10,000. In about 1989 Mr Bradley traced his natural mother. He then made contact with his father who, as I have said, is a Kuwaiti National living in Kuwait. The present position undoubtedly causes Mr Bradley very considerable hardship, as he says in his Affirmations. He wants to work in the Middle East and is qualified to do so. It is extremely difficult, if not impossible, for him in his present position to obtain work or even visit Israel or any-Arab country. He feels this acutely and feels that he does not belong now to either the Jewish or the Arab community. It is in those circumstances that he applied to set aside the Adoption Order of 27th July 1959.[12]In my judgment such an Application faces insuperable hurdles. An Adoption Order has a quite different standing to almost every other Order made by a Court it provides the status of the adopted child and of the adoptive parents. The effect of an Adoption Order is to extinguish any parental responsibility of the natural parents. Once an Adoption Order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an Adoption Order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child.[13]There are certain specific statutory provisions for the revocation of an Adoption Order. Section 52 of the Adoption Act, 1976, provides for the revocation of an adoption on legitimation. Section 53 provides for the annulment of overseas adoptions. Those exceptions provide for specific cases. Unlike certain other jurisdictions, there are no other statutory provisions for revoking a validly made Adoption Order. Parliament could have so provided if it had wished to do so. Accordingly Mr Levy is compelled to submit that the Court has an inherent power to set aside an Adoption Order made in circumstances such as these where, as he puts it, the Order was made under a fundamental mistake of fact.[14]There are cases where an Adoption Order has been set aside by reason of what is known as a procedural irregularity. See Re F (R) [1970] 1 QB 385, Re RA [1974] Fam. L. 131 and Re F [1977] Fam. 165. Those cases concern a failure to effect proper service of the adoption proceedings on a natural parent or ignorance of the parent of the existence of the adoption proceedings. In each case the application to set aside the Order was made reasonably expeditiously. It is fundamental to the making of an Adoption Order that the natural parent should be informed of the application so that she can give or withhold her consent. If she has no knowledge at all of the application then, obviously, a fundamental injustice is perpetrated. I would prefer myself to regard those cases not as cases where the Order has been set aside by reason of a procedural irregularity, although that has certainly occurred, but as cases where natural justice has been denied because the natural parent who may wish to challenge the adoption has never been told that it is going to happen. Whether an Adoption Order can be set aside by reason of fraud which is unrelated to a natural parent's ignorance of the proceedings was not a subject which was relevant to the present appeal.[15]Mr Alan Levy, QC submits that when the Adoption Act 1958, and the Adoption Act 1976, were passed, Parliament would have had knowledge that there was an inherent power to set aside an Adoption Order in the interests of justice. As the case law stood, certainly in 1976,, the powers of the Court to set aside an Adoption Order as known to Parliament would, in my view, have been limited to the power to set aside such an Order on the basis of a breach of natural justice such as I have described above, and not an inherent power to set aside an Adoption Order by reason of a mistake or misrepresentation. Mr Levy then criticises the judgment of the President under six headings. 1. He was wrong to find that the only cases in which an Adoption Order could be set aside are cases of non service of the proceedings. He cites Re M (Minors) (Adoption) [1991] 1 FLR 458 in support of that contention. 2. That the setting aside of a Decree Absolute in divorce proceedings is not an apt comparison to the setting aside of an Adoption Order. 3. The power vested in the Courts to set aside an Adoption Order is a discretionary power. 4. On the exceptional facts of this case the President should have exercised his discretion to set aside the Order. 5. The New Zealand cases relied on by Mr Levy show that in cases of a mistake it is right that an error should be corrected so as to preserve the integrity of the judicial process. The same consideration should apply to the judicial process in this country. 6. The Order should be set aside because all the parties were led astray, mistakes were made going to the root of the Adoption Application, and each of the parties, Mr Levy submits, would have done the opposite to that which they did if they had known the true position.[16]This last submission underlies Mr Levy's case. Having invited our attention to the events which occurred prior to the making of the Order, he submits that there was a fundamental mistake going to the very root of the Adoption Order. The fundamental mistake was the parties belief that a Jewish baby was being matched with Jewish parents whereas that was not the true position.[17]In support of his contention Mr Levy places reliance on Re M (supra).[18]The facts of that case were: following the divorce of their parents in 1981, two girls, aged 12 and 11, lived with their mother and stepfather, and later were adopted by them with the agreement of their natural father, who was leaving the country to work in America. He signed a consent form and the Adoption Orders were made in February 1988. Unknown to the father, the mother was suffering from terminal cancer at the time and died 3 months later. The stepfather found difficulty in looking after the girls who went to their paternal grandparents. Meanwhile, the father had remarried in America.[19]The girls visited him and his new wife and wished to make their home with them. The stepmother welcomed the idea and the stepfather agreed that it was the best course for the children.[20]The natural father appealed against the Adoption Orders on the ground that his agreement had been given in ignorance of the wife's condition.[21]It was held that the Appellant's ignorance of his wife's condition vitiated his agreement to the Adoption Orders. Glidewell LJ. said at page 459: "In my view this is a classic case of mistake. it is quite clear that the present Appellant was wholly ignorant of his former wife's condition and, had he known of it, he obviously would not have consented to the adoption. That ignorance vitiates his consent and means that it was of no effect. In the absence of that consent it is very doubtful whether the Adoption Order would have been made. Since it is clearly in the best interests of the children that the Adoption Order should be set aside, for those reasons, I would extend the time for both these appeals, because formally they are separate appeals, and allow both appeals.[22]I should say, as a postscript, that this is, if not unique, at the very least a wholly exceptional case. I say that because I do not want the setting aside of this Adoption Order in these circumstances to be thought of as being some precedent for any related set of facts in some other case."[23]Butler-Sloss L.J. stressed that the case was "in no way a precedent for any other adoption case, and there are quite exceptional circumstances."[24]There are, in my judgment, a number of important distinctions between that case and the instant case. They are: 1) It was held that the mistake, namely the ignorance of the wife's condition meant that the father would not have consented to the adoption and that ignorance vitiated his consent and meant that it was of no effect. Although Mr Bradley's mother may have been under certain misapprehensions, those misapprehensions could not in my opinion in any way vitiate her consent to the adoption by Mr and Mrs Rosenthal. The adopters themselves in 1968 did not suggest that their misapprehensions should result in the setting aside of the Adoption Order. In my judgment a mistake or misapprehension as to the race or ethnic origin or parental religion of the natural parents or the child could not amount to a circumstance which would vitiate a consent otherwise freely given. 2) The proceedings in Re M were by way of an application for leave to appeal out of time and to call fresh evidence as opposed to an application to set aside the Adoption Order. The application was made by the natural father of the children. No submissions were made to the Court apart from submissions made by the father. 3. The Court stressed in Re M that the setting aside of the Adoption Order was in the best interests of the children. Special considerations apply to Minors which cannot apply in this case. 4. The very short period of time that elapsed between the making of the Adoption Order and the death of the mother, three months only, and the short period between the making of the Order and the application to set it aside. 5. No injustice would result to any party by reason of the Order made in Re M . In my view, if the Order sought by Mr Bradley was made in this case, an injustice would be done to Mr and Mrs Rosenthal, albeit that they are now deceased. 6. The Court stressed the wholly exceptional nature of that case.[25]Mr Levy also relied on two New Zealand cases, Application by C & K (Adoption) [1984] 3 NZ FLR.321 and Re E [1992] NZ FLR 216. Those cases do not assist Mr Levy's case because the decisions of the Court were made pursuant to the specific provision contained in Section 20 of the Adoption Act, 1955, of New Zealand as follows:- "The Court may in its discretion vary or discharge any Adoption Order (whether the Order was made before or after the commencement of this Act....subject to such terms and conditions as it thinks fit."[26]Accordingly the Courts of New Zealand have an unfettered discretion to set aside an Adoption Order. J and JPC's Tutor [1948] S.C.636 may have a greater applicability to the present case. That was a case in which after the adoption had taken place the adopters, believing that they had adopted a healthy child, discovered:
"A severe brain injury had been sustained by the child at birth which injury had resulted in amnesia associated with epileptic manifestations and retarded physical development, that it is impossible to ascertain whether the child has normal hearing, and normal sight, that the brain of the child would never develop and the child would never be other than wholly mentally deficient."
[27]The adopters maintained that they had adopted the child under essential error induced by misrepresentation and applied to set the Order aside. It was accepted that the case undoubtedly disclosed a case of very grave hardship. The Lord President stressed that status was in issue. The Lord President said at page 644:
"As was observed by the Master of the Rolls in Skinner , the statute which made such anxious provision for effectuating adoptions, nowhere makes any provision for their suspension or cancellation. In Section 7 of the Act of 1930 provision is made whereby an adopted child can be got rid of by the adoptive parents by a second adoption; and to Section 7(6) of the Act of 1939 enables an adopted child in very special circumstances to be removed from its adopter to a "place of safety"
. But no facilities are offered to the adopter or natural parent who, for good reason or bad, rues his bargain, or for the adopter who adopts under error, essential to or otherwise."[28]In my judgment those words are entirely apt to the present proceedings. The case was one where the adopters acted under a grave misapprehension. They believed that they were adopting a healthy child, whereas they were in fact adopting a child with a grave disability. Nonetheless the Court held that there was no proper basis for setting aside the Adoption Order. There may be many reasons, indeed good reasons, for an adoptive parent or an adoptive child subsequently to regret the Adoption Order that had previously been made.[29]In giving his judgment in this case [1995] 1FLR 1, the President said at page 7: "In my judgment the adoption was regularly made in accordance with the procedure of the Court. It was then acted upon in the sense that the child was accepted into the adoptive family and brought up throughout his minority. I do not believe that the Court in these circumstances has any power to set aside or purport to nullify the Order which was made on 20th July 1959".[30]There is no case which has been brought to our attention in which it has been held that the Court has an inherent power to set aside an Adoption Order by reason of a misapprehension or mistake. 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. In my judgment Mr Holman, QC, who appeared as amicus curiae, is right when he submits that it would gravely damage the lifelong commitment of adopters to their adoptive children if there is a possibility of the child, or indeed the parents, subsequently challenging the validity of the Order. I am satisfied that there is no inherent power in the Courts in circumstances such as arise in this case to set aside an Adoption Order. Nobody could have other than the greatest sympathy with the applicant but, in my judgment, the circumstances of this case do not provide any ground for setting aside an Adoption Order which was regularly made. Accordingly I would dismiss this appeal.

LORD JUSTICE SIMON BROWN: My sympathy for this appellant is profound. It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim's son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group.

[32]I cannot think that, had the true circumstances been known at the time, anyone concerned would have permitted this order to have been made, not the Roman Catholic mother, nor the adoptive parents, nor the Court.[33]My Lord has pointed out that when in 1968 the Rosenthals were told by the Beth Din that the appellant was not Jewish, so far from taking steps to set aside the adoption order, they instead had him formally received into the Jewish faith and community. So they did, but it must be remembered that at that stage they had learned no more than that the appellant's mother was not Jewish (or perhaps even as little as that, because of that, neither in Jewish law was her son). They continued to believe that the appellant's father was Jewish and indeed never themselves learned the contrary (save only for Mrs. Rosenthal at the very end of her life).[34]I therefore have no difficulty in accepting Mr. Levy, QC's basis premise here that there was indeed a fundamental mistake made that went to the very nature of the 1959 placement.[35]The question before us, however, is whether now, some 35 years later, anything can be done about that mistake at the suit of the adopted child himself.[36]The President ruled that no ground exists here for setting aside this adoption order, regularly made as it was in the exercise of the Court's jurisdiction under the Adoption Act 1958: the Court simply has no power, no jurisdiction, to do any such thing.[37]Mr. Levy, QC submits to the contrary, that the Court has an inherent power to set this order aside. There are essentially two strands to his argument.[38]First, Mr. Levy points to the statutory regime operating in Australia and New Zealand under which it is plain that, in a case such as this, the Courts would indeed have a discretion to discharge the adoption order - for example, in New Zealand under section 20 of their Adoption Act 1955, upon it being established that the order "was made by mistake as to a material fact or in consequence of a material misrepresentation to the Court or to any person concerned". That, he submits, demonstrates that no necessary incompatibility arises between such an approach and the proper integrity of an adoption scheme. Our Courts ought accordingly, despite the absence here of any such statutory power, to recognise an inherent jurisdiction to achieve a similar result.[39]Secondly Mr. Levy submits that the English authorities do in fact already suggest the existence of such a jurisdiction. He relies in particular upon certain dicta in In re F (R) (an infant) (1971) QB 385 and, above all, upon Re M (1991) 1 FLR 458.[40]Neither strand of the argument can I accept. Tempting though it is to come to the aid of this appellant in his plight, I too have reached the clear conclusion that we cannot, that to do so would involve a radical and impermissible distortion of the long established adoption regime in this country.[41]As to the contrasting position under Australian and New Zealand law, I accept Mr. Holman, QC's basic submission that that is by clear design: wisely or otherwise they have always preferred a less final adoption regime. Our 1958 Act, the precursor of the existing 1976 Act, can hardly have been enacted in ignorance of the 1955 Act in New Zealand.[42]And when one comes to analyse the English authorities none of them in the end seem to me to lend any true support to the appellant's case. The only ways of challenging adoption orders - save in the narrow circumstances provided for by sections 52 and 53 of the 1976 Act - are by certiorari or appeal (if necessary, by leave to appeal out of time). R v Leeds City Justices (ex parte Gilmartin) (1951) CLY 4853 is an example of a successful challenge by certiorari on the grounds of procedural irregularity - the concealment of the father's address and the consequent failure to notify him of the proceedings. Other cases of procedural irregularity have been pursued by way of appeal out of time - see for example In re F (R) (1970) 1 QB 385 and In re RA (1974) Family Law 131. Re M (1991) 1 FLR 458 was another case of a successful appeal out of time, albeit there on a different ground, that of mistake.[43]In all the cases which have proceeded by way of appeal the challenge has, of course, gone direct to the appeal court itself (in Re RA , the Divisional Court of the Family Division). Contrast the present case.[44]The Scottish case of J and JvC's Tutor (1948) SC 636 involved a claim for reduction - a process akin to our judicial review. (No appeal, of course, was open to the claimants; they it was who had obtained the adoption order in the first place.) The ground of challenge was mistake. It failed. So too, I believe, would it have failed here. As was held by this Court in R v West Sussex Quarter Sessions ex parte Albert and Maud Johnson Trust Ltd (1974) 1 QB 24 (Orr and Lawton, LJJ, Lord Denning, MR, dissenting), certiorari is not available to quash a decision of an inferior tribunal merely on the ground that fresh evidence which might have affected the result has been discovered after the trial. It is well established that certiorari is limited to cases where it is shown that there have been defects or irregularities at the trial which vitiated the proceedings. Fresh evidence can accordingly be admitted of perjury or fraud which by their nature vitiate the proceedings. It is not, however, sufficient to show that a mistake had been made.[45]It is, in short, one thing to allow an appeal (even an appeal out of time) on the ground of mistake; quite another to recognise it as a broad general basis of challenge available on judicial review or upon such unique form of process as is now before us. And, indeed, even upon appeal, as this Court made very plain in Re M , only rarely will an adoption order be set aside on the ground of mistake: there are, as my Lord's judgment has made plain, compelling reasons for treating adoption orders as of peculiar finality. Had the appellant's mother discovered the nature of the placement and herself appealed within a short time of the order being made, then, particularly if her appeal was supported by the Rosenthals, it might well have succeeded. But today, even supposing (contrary to the fact) that the appellant himself had been a party to the order and thus was entitled to appeal against it, it is inconceivable that any court would now grant him leave to appeal out of time and proceed to discharge the order. Exceptional though this case undoubtedly is and strong though the appellant's grievance, more important still is the integrity of the adoption system: its inviolability must be the ultimate imperative.[46]For these reasons, in addition to those given by my Lord, I too would dismiss this appeal.[47]THE MASTER OF THE ROLLS: Like my Lords, I have the greatest possible sympathy with the appellant in this appeal, who finds himself in a position of unusual difficulty through no fault of his own. I had hoped that his difficulty might be alleviated by a change of name and an application under section 56 of the Family Law Act 1986, but he feels that these expedients will be of little help to him in his predicament and he has no doubt considered the possible courses of action open to him very carefully.[48]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. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.[49]The Adoption Act 1976, in sections 52 and 53, makes provision for revocation and annulment of adoption orders. It is, however, noticeable that these provisions are very narrowly drawn, and no general challenge is permitted to adoption orders (otherwise than by way of appeal in the usual way). The narrowness of these provisions contrasts with the terms of certain statutes in New Zealand and Australia which make provision for a much wider basis of challenge. One can only assume that the narrow challenge provided for in the 1976 Act is the result of deliberate decision, the inference being that the legislature thought it undesirable to open the door to any-wider ranging application.[50]The courts have, as it seems to me, been very strict in their refusal to allow adoption orders to be challenged (otherwise than by way of appeal). The clearest example of this strict approach is perhaps to be found in J and JvC's Tutor [1948] SC 636. That was a case of very clear and fundamental error, and also a case of extreme hardship viewed from the adoptive parents' point of view. Before adopting the child in question, the adoptive parents had been assured that the child had been medically examined and pronounced fit and healthy. A short time after the adoption, when they were prompted to have the child medically examined themselves, they learned that the child had sustained a severe brain injury at birth, which had resulted in amentia associated with epileptic manifestations and retarded physical development, with doubt as to whether the child had normal hearing and sight, and a prognosis that the brain of the child would never develop and that the child would never be other than wholly mentally deficient. Despite these facts, the Court of Session unanimously rejected a petition by the adoptive parents for the revocation of the adoption order, holding that it was no ground for doing so that the adoptive parents had been innocently misled into adopting the child.[51]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.[52]None of these situations pertains here. No party to the adoption proceedings has at any stage appealed against the order. The order was regularly made, and there was no procedural irregularity of any kind. It is not suggested that any party to the proceedings deliberately misled the court which made the adoption order. It may be that the matron to whom my Lord has referred was disingenuous in explaining the background to the adoptive parents and the Children's Officer, but there exists at least a possibility that she was simply confused.[53]I was at first inclined to think that the recent case of Re M (Minors) (Adoption) [1991] 1 FLR 458 was difficult to reconcile with earlier authority. On further examination of the case, I think this is not so. It was an application to appeal out of time (and an appeal) by the natural father of the children, who had been a party to the earlier proceedings which he now sought to set aside. Time being extended, he was permitted to adduce evidence which put a very different complexion on the facts as they were understood by the judge at the time when the order was made. This being so, it does not appear that the members of the Court of Appeal were opening the door to a new and wide-ranging jurisdiction to set aside adoption orders, but were simply showing a measure of indulgence to an appellant seeking an extension of time. In granting that indulgence the Court were no doubt alive to the interests of the children, which would in the circumstances described to the Court be much better served by revocation of the adoption order. Even so, the Court was at pains to emphasize the exceptional nature of the case which had led it to allow the application and the appeal and to discourage reliance on the decision as a precedent. I do not think this decision can properly be treated as modifying in any way the earlier authorities, which were not in any event cited, so far as one can tell from the report. In the end, and much as I would like to help the appellant, I feel that it is impossible to do so without creating a discrepancy between English and Scottish authority, which is in itself highly undesirable in a field such as this, and without a risk of disturbing in a potentially mischievous way the basic assumption upon which the adoption regime is founded in this country.[54]For these reasons, in addition to those which my Lords have given, I feel reluctantly bound to dismiss this appeal.[55]Appeal dismissed. Legal Aid Taxation. Leave to appeal to the House of Lords refused.

Cited in 27 later judgments

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