Law Report: Adoption order could not be set aside: Re B (adoption: setting aside) - Family Division (Sir Stephen Brown, President), 29 April 1994

The court had no power to set aside the adoption by orthodox Jewish parents in 1959 of a child whom they had been told was Jewish but was in fact of mixed Kuwaiti Muslim and English Catholic parentage, because although the adoptive parents had later discovered the deception, they had continued to bring the child up as a Jew, and the adoption order itself had been regularly made.

Sir Stephen Brown, President of the Family Division, refused an application by a 35-year old man, referred to as Jonathan B, to set aside an adoption order made in respect of him in Liverpool County Court, on 20 July 1959, which had directed that his name be recorded in the Adopted Children Register as Ian David Rosenthal.

Allan Levy QC and Timothy Compton (White & Sherwin, Croydon) for the applicant; James Holman QC (Official Solicitor) as amicus curiae.

SIR STEPHEN BROWN said the applicant, who had changed his name to Jonathan B by deed poll, was born on 8 March 1959. His natural mother was Eleanor Mary B, an English woman and a Roman Catholic by religion. His natural father was a Kuwaiti and a Muslim. The mother and father were never married and the father left the UK without knowing of the mother's pregnancy or the applicant's birth.

The adoptive parents were a Jewish couple who were led to believe the applicant was Jewish and brought him up as an orthodox Jew. He attended Synagogue and had his Barmitzvah at the normal age. But he was not Jewish by birth.

The adoptive parents were misled into believing the child they were adopting was Jewish. They did not discover the truth for nine years, and when they did, they took steps to ensure that he was formally accepted into the Jewish faith, which he duly was: a letter to them from the clerk to the Court of the Chief Rabbi, the Beth Din, dated 2 April 1970, confirmed that 'your adopted son Ian David was duly received into the Jewish faith and community on Tuesday 31 March 1970. He was given the names of . . . (the Hebrew letters then followed). Please retain this letter as evidence of your child's status'.

In 1983 he graduated with a degree in semitic languages and literature and in 1986 he endeavoured to emigrate to Israel. But in Israel he was assumed by many to be an Arab. He was accosted in the street, accused of being a Palestinian terrorist and physically threatened. In 1987 he was officially informed that he was 'persona non grata' and was asked to leave Israel.

He thereupon made inquiries and discovered that his true father was now an important citizen of Kuwait. He wished to go to Kuwait and said that, so far as his natural father was concerned, he would be welcome there. But he was restricted in his ability to travel in the Arab Middle East because of his time in Israel. As he put it himself: 'To the Jews I am an Arab; to Arabs, a Jew.'

But although the applicant's adoptive parents were misled as to his supposed Jewishness when they adopted him, the adoption proceedings themselves were regularly conducted and concluded. Thereafter, he was received fully into their family. They did not seek to challenge the validity of the adoption order when they discovered that he was not Jewish by birth. Instead, they took steps to ensure that he was fully received into the Jewish faith. Both had now died.

There was no statutory provision for the annulment or revocation of an adoption order in circumstances such as these. The only cases where adoption orders had been set aside were where there had been a procedural irregularity, but this adoption was regularly made in accordance with the procedure of the court.

The extraordinary situation in which Mr B found himself, while evoking sympathy, did not provide grounds for setting aside an adoption order regularly made in the exercise of the court's jurisdiction.