Limiting the High Court's Inherent Jurisdiction over Children: Re X and Y (Adoption Order: Setting Aside)

The Supreme Court in Re X and Y (Adoption Order: Setting Aside) confirms that there is no power under the High Court's inherent jurisdiction to set aside a properly made adoption order, even if the child's welfare would be better served by un‐doing the adoption. However, the importance of the case goes far beyond adoption, and raises challenging questions for the current renaissance that the inherent jurisdiction is experiencing, both in relation to children and in relation to incapacitous and so‐called ‘vulnerable’ adults. This note argues that Re X and Y represents the clearest modern articulation of constitutional limits on the High Court's inherent jurisdiction, and that a proper application of those limitations would significantly curtail other current uses of the inherent jurisdiction by the Family Division of the High Court. Important questions are raised about the constitutional appropriateness of the High Court's current uses of its inherent jurisdiction, including – as in Re X and Y – the extent to which that jurisdiction in fact exists.