M (A Child: Adoption: Duty of Disclosure) [2026] EWCA Civ 568

Background

The case concerned T, a two-year-old boy who had never lived with his birth parents. Care proceedings were commenced shortly after his birth in April 2024 due to his birth mother's difficulties with substance and alcohol misuse. A final placement order was made in October 2024.

The prospective adoptive mother ("AM") and prospective adoptive father ("AF") had been a couple since 2017 and married in 2023. They were approved as prospective adopters in August 2024, following being matched with T in April 2025. T was placed with them in May 2025. They applied jointly for an adoption order in July 2025. An initial report was completed in August 2025. It described AM and AF as having a "strong and stable relationship” and supported the adoption application. T was reported to have settled well in their care.

The final adoption hearing took place before HHJ Hudson on 21 November 2025. The prospective adopters did not attend, having been excused, and their social worker was on leave. T's social worker informed the court that he was thriving and that the adopters were devoted to him. On the evidence available, the judge concluded that adoption remained the only plan capable of meeting T's long-term welfare needs and made the adoption order.

The Undisclosed Circumstances

The factual position at the time of the adoption hearing was, however, materially different from that presented to the court. On 21 January 2026, T's former social worker received information that AM and AF had separated and that AM was in a relationship with a serving prisoner. Subsequent enquiries established that AF had in fact moved out of the family home in October 2025, more than a month before the adoption order was made.

It emerged that AM had formed a relationship with a male prisoner who was serving a sentence for a drug-related offence. His offending history included battery, weapons and drug offences, and he had previously been accused of sexual offending against a child, although no further action had been taken in relation to that allegation. The prisoner had given AM's home address as his proposed release address and had referred to T as his "stepson" since October 2025. AM subsequently took T to visit him in prison. She had also been looking after the prisoner's dog. AF later commenced divorce proceedings. None of these matters had been disclosed to the family court before the adoption order was made.

In March 2026, Northumberland County Council ("LA2") commenced care proceedings and obtained an interim care order. T was removed from AM's care and placed with AF's parents. Gateshead Metropolitan Borough Council ("LA1"), the original LA, then appealed against the adoption order.

Grounds of Appeal

LA1 advanced four grounds of appeal.

First, it argued that the adopters’ failure to disclose the breakdown of their relationship, AM's relationship with a serving prisoner and the possibility that he would live with AM and T amounted to a serious irregularity in the proceedings.

Secondly, it argued that the adoption order had been made on a materially mistaken factual basis, undermining the welfare evaluation required by s.1 Adoption and Children Act 2002, particularly in relation to the permanence of the placement, the adopters' ability to provide stable and safe care, and the risks posed by persons likely to come into contact with T.

Thirdly, the court's discretion had been exercised on an incomplete and inaccurate evidential foundation.

Finally, the resulting welfare evaluation had been unfair to T given the profound and lifelong consequences of an adoption order.

The appeal was supported by T's Guardian and LA2. AF did not oppose the appeal and AM did not participate.

The Legal Framework

Jackson LJ began by emphasising the exceptional significance of an adoption order. He observed that no legal order affecting an individual is more consequential than the adoption of a young child as it entails both a change in the child's life and a change in their legal identity.

The child's welfare throughout their life is the court's paramount consideration. The court must consider, among other matters, the child's needs, the risk of harm and their relationship with prospective adopters, including the likelihood that the relationship will continue (s.1 ACA 2002).

Further, r 14.11 FPR 2010 requires the LA to file a report concerning the suitability of the prospective adopter. Annex A to PD14C expressly requires consideration, where adoption is proposed by a couple, of the status, stability, and permanence of that relationship, together with an assessment of the applicants' ability and suitability to raise the child. Jackson LJ therefore described the stability and durability of the adopters' relationship as a "fundamental component of the adoption decision".

Duty of Full and Frank Disclosure

The central principle arising from the judgment is that every prospective adopter owes a continuing duty of full and frank disclosure to the court. Jackson LJ stated at [25]: "each prospective adopter is under a clear duty to the court to make full and frank disclosure about their circumstances at every stage of the process up to the making of the adoption order." The duty is breached where the court is misled through the prospective adopter's "words, deeds or silence".

The Court relied upon Re B, R & C (Children) [2002] EWCA Civ 1825, in which Thorpe LJ described the general duty of full and frank disclosure in public law children proceedings as effectively self-evident. Jackson LJ considered that the duty assumed particular importance in adoption because of the permanent consequences such an order. The Court also considered previous cases in which adoption orders had been successfully challenged because information had been withheld, including In re F (R) (An Infant) [1970] 1 QB 385; Re M (Minors) (Adoption) [1991] 1 FLR 458; Re K (Adoption and Wardship) [1997] 2 FLR 221, and Re J (A Child) (Adoption: Non-party Appeal) [2018] EWFC 8.

In Re J, an adoption order had been obtained after the applicants concealed the identity and whereabouts of the child's birth father. Cobb J set the order aside because it had been made on incomplete information. The present case extended the same principle to material concealment concerning the prospective adopters' own circumstances and relationships.

Decision

The Court of Appeal unanimously allowed the appeal, set aside the adoption order and dismissed the adoption application.

Jackson LJ held that the misinformation concerning the adult relationships within T's proposed family "fundamentally undermined the court's decision" at [30]. Had HHJ Hudson known that AM and AF had separated or even had an indication of AM's relationship with the prisoner, she would not have made an adoption order in favour of the couple without further investigation.

The Court relied upon CPR 52.21(3), under which an appeal may be allowed where the lower court's decision was wrong or unjust because of a serious procedural or other irregularity. In the court’s view, both bases were established. First, on the true facts existing at the time of the November 2025 hearing, the adoption order was the wrong order. Secondly, the prospective adopters' failure to make full and frank disclosure amounted to a serious irregularity which rendered the proceedings unjust.

The Court therefore concluded that the lower court had acted on an uninformed basis. Jackson LJ emphasised there had been no fault on the part of HHJ Hudson. On the information available to her, any judge would have made the adoption order. Had the true circumstances been known, no judge could properly have done so.

Consequences of Setting Aside the Order

Setting aside the adoption order had significant legal consequences. T ceased to be a member of his adoptive family and legally reverted to membership of his birth family. AM and AF ceased to have parental responsibility. Applying Re W (A Child) [2010] EWCA Civ 1535, the original care and placement orders made in favour of LA1 revived. At the same time, LA2 already held an interim care order arising from the new care proceedings. This produced the unusual situation in which two local authorities possessed parental responsibility in respect of T. The LAs reached a transitional arrangement pending further proceedings.

Practical Significance

The significance of this case lies in its confirmation that the duty of candour imposed upon prospective adopters is continuous. Approval as an adopter and completion of an assessment do not bring that obligation to an end. Material changes must continue to be disclosed. The Court made clear that such matters are central to the lifelong welfare analysis required by s.1 ACA 2002.

There is also an important practice point for social workers. Jackson LJ stopped short of criticising the professionals involved, acknowledging that determined deception may not necessarily have been discovered through further enquiries. Nevertheless, the judgment expressly stresses the need to ensure that information before the court remains up to date at the final adoption hearing, particularly where a substantial period has elapsed since completion of the report and the prospective adopters have been excused attendance.

The full judgement can be found here.