An adoption order under section 28 changes a child’s legal parentage for the purpose of all laws. Section 13 of the Adoption of Children Act (Chapter 275) is the only way to undo it.
The Director or the Attorney-General may apply to the Court for an order discharging an adoption order, and the Court may make such an order if it is satisfied that —
(a) the adoption order, or any consent for the purposes of the adoption order, was obtained by fraud, duress or other improper means; or
(b) there is some other exceptional reason why, in view of the welfare and interests of the child, the adoption order should be discharged.
Only two people can bring the application
Section 13(1) confines standing to the Director and the Attorney-General. A birth parent who says their consent was procured by pressure cannot apply directly; nor can the adopters, nor the child.
The reason is to keep adoptions stable. If any dissatisfied party could apply, an adopted child’s status would be permanently open to challenge — which is precisely what the scheme is designed to prevent.
A person with a genuine complaint must persuade the Director or the Attorney-General to act. The Director is well placed to do so: section 9(1) required a written report before the order was made, section 14(2) gives the Director custody of the sealed identifying documents, and section 66 allows the Director to appear at hearings.
Paragraphs (a) and (b)
| Ground | What must be shown |
|---|---|
| (a) Improper means | The order, or any consent for its purposes, was obtained by fraud, duress or other improper means |
| (b) Exceptional reason | Some other exceptional reason why, in view of the welfare and interests of the child, the order should be discharged |
It is not confined to the order itself. A consent obtained by fraud, duress or other improper means is enough — which links section 13 to section 20(1)(b), the same wording used where the Court may refuse to rely on such a consent before the order is made.
The same conduct is often criminal: section 49 creates the offence of undue influence, section 48 of presenting a forged consent, section 47 of personating a person whose consent is required, and section 42 prohibits payments in consideration of adoptions. See the adoption offences.
Ground (b) is expressly tied to the child: the exceptional reason must be one going to the welfare and interests of the child, not to the adults’ disappointment.
Section 13(2) — the overriding limit
The Court shall not make an order under this section if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child.
Even where ground (a) is fully established, section 13(2) bars discharge if it would harm the child.
That will often be the position. A child adopted as an infant, now settled for years with the adopters, is unlikely to benefit from having that undone — whatever was wrong with the original consent.
Section 13(2) makes explicit for this section what section 5 requires throughout Part III: the welfare and interest of the child concerned shall be regarded as the paramount consideration. A wrong done to a birth parent does not entitle them to a remedy at the child’s expense.
Sections 13(3) and (4)
Where the Court discharges an adoption order made in reliance on a general consent, then unless the Court otherwise orders, the general consent remains in operation for the purposes of any further application for the adoption of the child.
The Court may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or the welfare and interests of the child, including orders relating to —
(a) the name of the child; (b) the ownership of property; (c) the custody or guardianship of the child; (d) the domicile (including the domicile of origin) of the child.
Each undoes something the adoption did: section 30 gave the child the adopters’ surname; sections 28 and 29 changed property entitlements; section 28(1) transferred parental status; and section 31(2) made the adoptive domicile the child’s deemed domicile of origin — which is why paragraph (d) expressly mentions it.
Section 13(3) is practical: where the original general consent was valid, discharging the order does not force the birth parent to consent again for a fresh adoption to proceed.
Section 13(5) — the position after discharge
On discharge — subject to any order under subsection (4) and to section 28(2) — the rights, privileges, duties, liabilities and relationships of the child and of all other persons are the same as if the adoption order had not been made, but without prejudice to —
(a) anything lawfully done; or (b) the consequences of anything unlawfully done; or (c) any proprietary right or interest that became vested in any person, while the adoption order was in force.
Paragraph (c) protects third parties: property that vested during the adoption stays vested. And the reference to section 28(2) preserves the rule that, for the purposes of sexual offence laws, neither an adoption order nor its discharge causes any relationship to cease — both the biological and the adoptive relationships are deemed to exist.
Sources
- Adoption of Children Act (Chapter 275) — ss 5, 9, 13, 14, 16, 20, 28–31, 42, 47–50, 66
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.