Case No. FD21P00367

26.Ms Slarks correctly draws a distinction between a local authority’s decision as an adoption agency to apply for a placement order or to place a child with prospective adopters, which may be defective if taken in breach of one or more requirement in the AAR 2005, and any subsequent decision of a court to grant a placement or adoption order. Whilst the former may be a target for challenge by judicial review, the latter is not.27.Ms Slarks submits, and the other parties accept, that the well-established constitutional theory of ‘the second actor’ must apply. The theory provides that any unlawfulness by a first actor may invalidate their own acts, but will not directly invalidate the act of a second actor. Another recent decision of the Supreme Court describes, with apparent approval, the application of this principle. In R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7, at paragraph 40, Lord Carnwath said:40. Secondly, I note Pill LJ’s observation that Sullivan LJ’s analysis was not invalidated because “the same actor” (the Secretary of State) made both orders. This I take to be a reference to the so-called “Theory of the second actor”, developed by Professor Forsyth among others “to explain how an unlawful and void administrative act may none the less have legal effect”:“It is built on the perception that while unlawful administrativeacts (the first acts) do not exist in law, they clearly exist in fact.Those unaware of their invalidity (the second actors) may takedecisions and act on the assumption that these (first) acts arevalid ...” (Wade and Forsyth Administrative Law 11th ed, pp251-252; see also footnote 145 for a list of judicial citations.)The best known example (though not at the time explained in those terms) is Percy v Hall [1997] QB 924, in which the Court of Appeal rejected a claim against police officers for wrongful arrest, where the byelaws on which they had relied were later found to have been invalid.”28.In the present context, the court, as the second actor, was unaware that the local authority, as first actor, had failed to abide by the regulations when deciding to apply for a placement order, even if the local authority decision to apply was potentially void, the court was, nevertheless, entitled to make its own decision and grant a placement order. Where, subsequently, an adoption order is made, the court making that order is, in effect, a third actor and is one step further removed from any defect in the original decision to apply for a placement order.29.Ms Slarks further submits that a court would only be bound to declare that an existing order was void in these circumstances if the error made by a local authority went to the court’s jurisdiction to make the order. That issue was considered by Sir James Munby in M v P [2019] EWFC 14, a case relating to the validity of decrees of divorce, which had been made on the basis of two years’ separation, notwithstanding the fact that the relevant petition had been issued less than two years after the alleged separation date. At paragraphs 94 to 98, Sir James analysed the existing caselaw and concluded that the courts had drawn a clear distinction between those cases where the court did not have jurisdiction to grant a decree, and those where the court did have jurisdiction but the process had been infected by an error on the part of one of the parties. In the former category resulting court orders were void, but in the latter category they were merely voidable.30.At paragraph 100, Sir James described how an approach which sought to uphold the validity of orders relating to an individual’s status (in that case whether they were married or divorced) was compatible with the approach of the courts and of Parliament:“100. That apart, there are, I think, three general conclusions to be drawn from this survey of the jurisprudence:i) First, a general lack of appetite to find that the consequence of ‘irregularity’ – I use the word in a loose general sense and not as a term of art – is that a decree is void rather than voidable. That is something one finds sometimes stated in terms – as by Phillimore LJ in P v P [1971] P 217, page 225, by Sir George Baker P in Dryden v Dryden [1973] Fam 217, page 236, by Rees J in Wright v Wright [1976] Fam 114, page 124, and by Holman J (who, as we have seen, knows a lot about these things) in Krenge v Krenge [1999] 1 FLR 969, page 978 – and it is, in truth, implicit in much of the analysis which underpins all these cases. And the language used is typically robust. If Phillimore LJ confined himself to the proposition that a court “ought not lightly to treat a decree absolute as void”, Sir George Baker P, followed by Holman J, said that the court “should strive to hold that a decree absolute is voidable rather than void”, while Rees J said that the court “should only hold a decree absolute to be void if driven by the terms of the relevant statute so to hold.”ii) Secondly, a general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of the case.iii) Thirdly, recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it. This, as Ms Bazley points out, is a general principle extending across matrimonial law and including such matters as the recognition in this jurisdiction of foreign divorces. In addition to the authorities I have already cited, Ms Bazley helpfully referred me to others, including, for example, the dicta of Scott LJ in Meier v Meier [1948] P 89, page 93, quoted by Sir Jocelyn Simon P in F v F [1971] P 1, page 13; of Sir Jocelyn himself on the same page (“the importance that Parliament attaches to the certainty of the change of status arising out of a decree absolute”); of Hughes J in El Fadl v El Fadl [2000] 1 FLR 175, page 191; of Stephen Wildblood QC in H v H (The Queen’s Proctor Intervening) (Validity of Japanese Divorce) [2006] EWHC 2989 (Fam), [2007] 1 FLR 1318, para 183; and of Parker J in NP v KRP (Recognition of Foreign Divorce) [2013] EWHC 694 (Fam), [2014] 2 FLR 1, para 131.”31.Whilst the need to draw a distinction between an order that is void, and one that is voidable, will arise more frequently in relation to marriage and divorce, the Court of Appeal applied a similar approach in the context of adoption in Re F (Infants) (Adoption Order: Validity) [1977] Fam 165. The decision in Re F is instructive and plainly relevant to the issue before this court. Adoption orders had been made providing for a husband and wife to adopt two children of the wife’s former marriage. Under the law at the time, an adoption order could only be made in favour of a married couple (or a single person). It was subsequently discovered that the applicants’ marriage was void because, at the time of the marriage, the husband was still married to his former wife. The applicant wife obtained a decree of nullity and the couple married again once the husband was free to do so. Their application to the county court for a declaration as to the status of the adoption orders was dismissed. On appeal, the Court of Appeal held that the adoption orders were good on their face and valid until set aside by a competent court. In the circumstances of the case, the orders were voidable and not void, and the court was not obliged to set them aside. It had not been established that the interests of justice were served by setting them aside and leave to appeal was therefore refused. Giving the judgment of the court, Ormrod LJ, referring to errors of fact as to marital status or, in another case, country of residence said:“Such an error of fact would be a ground of appeal against the adoption order at the suit of an aggrieved party and, in a proper case were the interests of justice so required, for allowing the appeal out of time and setting aside the order.”32.Ms Slarks submits, and I accept, that the Court of Appeal decision in Re F (Infants) confirms the applicability in adoption law of the approach taken by Munby J, in the context of marriage some 40 years later, and is a strong ground for this court applying the same approach to the present litigation. Like marriage and divorce, adoption is primarily concerned with an individual’s status, in terms of his or her legal, familial relationship with others. The policy impetus in favour of setting aside those orders which must be set aside because they are void, for want of jurisdiction, yet preserving those which need not be set aside and are merely voidable, is likely to apply to adoption just as it does with respect to marriage and divorce.33.A more recent decision of the Court of Appeal, Re F (Placement Order) [2008] EWCA Civ 439; [2008] 2 FLR 550, is illustrative of the same approach. In Re F (Placement Order), a father, who had been seriously ill and played no part at the time a court had made a placement order, on learning of the situation once he had recovered, applied for leave to apply to revoke the order. On hearing of the father’s application, and during a 10 day gap before the court could consider the case, the local authority proceeded to place the child, thereby removing the court’s jurisdiction to consider the father’s application (ACA 2002, s 24(2((b)). The Court of Appeal condemned the local authority’s actions in the strongest terms as being ‘disgraceful’ and an ‘abuse of power’, and Wall LJ repeatedly indicated that a local authority acting in this way was vulnerable to challenge by judicial review (paragraphs 36, 94, 95 and 102). Nevertheless the court did not entertain any suggestion that the first instance judge’s dismissal of the father’s application had been somehow rendered unlawful in consequence of the local authority’s actions.34.Moving on, Ms Slarks refers to ACA 2002, s 21 (see paragraph 18 above), which sets out the gateway criteria that must be met to establish a court’s jurisdiction to make a placement order. None of the statutory criteria turn upon the local authority’s adherence to the requirements of the AAR 2005. The significance of the AAR obligations is that they go to the local authority’s capacity, and in some cases its duty, to make an application [under ACA 2002, ss 19 and 22], and not the court’s jurisdiction to determine whether to make a placement order.35.The position with respect to the court’s jurisdiction to make an adoption order is in like terms. Under ACA 2002, s 47, before it may make an adoption order, a court must be satisfied that one of the three conditions set out in s 49 is met. Those conditions relate to parental consent or placement for adoption under a placement order (or similar order made in Scotland or N Ireland). The court’s jurisdiction is further defined by ACA 2002, s 49 which relates to the marital status, or otherwise, of the adopter(s), their domicile or habitual residence and the age of the child. Yet further requirements are imposed by ss 50 and 51 regarding the age of the adopter(s) and the marital status of a single adopter. None of the statutory stipulations, which establish the court’s jurisdiction to make an adoption order, relate to compliance, or otherwise, by a local authority with the requirements of the AAR 2005.36.The analysis presented by the Secretary of State is not actively contested by any of the parties before the court and, as I have already indicated, I accept it as being a correct statement of the law. It follows that a placement order or adoption order made in circumstances where there has been a breach by the adoption agency of the medical requirements of AAR 2005 is not in consequence void. At its highest, it will, applying the approach of the Court of Appeal in Re F (Infants), be voidable and subject to challenge by way of appeal on the facts of any specific case.