H v A
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 18 November 2020 |
| Neutral Citation | [2020] EWFC 74 |
| Docket Number | Case No: PR20P00303 |
| Court | Family Court |
| Date | 18 November 2020 |
and
[2020] EWFC 74
THE HONOURABLE Mr Justice MacDonald
Case No: PR20P00303
IN THE FAMILY COURT
Sitting Remotely
The Applicant appeared in person
The First Respondent did not appear and was not represented
Ms Lorraine Cavanagh QC and Ms Eleanor Keehan (instructed by the Adoption Agency) for the Second Respondent
Hearing date: 29 September 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 10.30am on 18 November 2020.
INTRODUCTION
Does the court have jurisdiction pursuant to s 55A(1) of the Family Law Act 1986 to grant to a birth parent in the position of the applicant a declaration of parentage in respect of a child following the lawful adoption of that child under the Part 1 of the Adoption and Children Act 2002? If the court does have jurisdiction to grant a declaration of parentage in such circumstances, does s 55A(5) of the Family Law Act 1986 permit the question of whether the court should refuse to hear such an application, on the grounds that it is not in the child's best interests to determine the application, to be dealt with as a preliminary issue? If so, should the court refuse at this stage to hear the application in this case or list the matter for a final hearing? These are the questions that arise at this stage of the proceedings in respect of an application made by Mr H for a declaration of parentage in respect of an adopted child formerly known as T (who, for the sake of convenience, I shall refer to in this judgment as T). Mr H appears before the court in person. He is the birth father of T as confirmed by the results of a DNA test dated 16 November 2015. Mr H has provided the court with a Position Statement and has made short oral submissions at this hearing.
The respondents to this application are R, the birth mother of T, and [named local authority], the adoption agency that placed T for adoption. R does not appear before the court and is not represented. The adoption agency, which opposes Mr H's application, is represented by Ms Lorraine Cavanagh, Queen's Counsel and Ms Eleanor Keehan of counsel. Ms Cavanagh and Ms Keehan have provided the court with a comprehensive Skeleton Argument borne of meticulous research into the relevant statutory provisions and Ms Cavanagh has made detailed oral submissions at this hearing.
Whilst T was for a time joined as a party to these proceedings by an order of His Honour Judge Booth of 5 June 2020, on 31 July 2020 His Honour Judge Booth discharged T as a party to the proceedings having regard to the provisions of FPR 2010 r 8.20(1). The adoptive parents of T are aware of this application but are not party to these proceedings, His Honour Judge Booth having directed on 22 June 2020 that they should not be joined. The views of the adoptive parents have however, been conveyed to the court by the statement of L on behalf of the adoption agency dated 25 September 2020.
On 31 July 2020 the adoption agency were directed by His Honour Judge Booth to notify the Attorney General of the proceedings and to serve copies of the relevant documents upon her pursuant to s 59 of the Family Law Act 1986. Notice was given to the Attorney General pursuant to the order of His Honour Judge Booth and the documents duly served on 7 August 2020. No response has been received to date from the Attorney General.
For the reasons set out below, I am satisfied that the court does have jurisdiction in an appropriate case, pursuant to s 55A(1) of the Family Law Act 1986, to grant to a birth parent a declaration of parentage in respect of a child following the lawful adoption of that child under Part 1 of the Adoption and Children Act 2002. I am further satisfied that s 55A(5) of the Family Law Act 1986 does admit, again in an appropriate case, of a preliminary hearing on the question of whether it is in a child's best interests for the court to refuse to hear an application under s 55A(1) of the Act. However, I am not satisfied in this case that it is in T's best interests for the court to refuse at this stage to hear Mr H's application and I accordingly intend to list that application for a final hearing having determined the question of jurisdiction in the affirmative.
Finally by way of introduction, and very importantly, the objective stated on the face of Mr H's application is to facilitate him having T's birth re-registered such that his name appears upon her original birth certificate as her birth father. I observe however, that it is clear that Mr H, who is without the benefit of legal advice, also considers that his application for a declaration of parentage prefigures his resuming a role in T's life. In these circumstances, it is only right that the court makes absolutely clear to Mr H that whilst I am satisfied that the court has jurisdiction to deal with his application under s 55A of the Family Law Act 1986 and that it is appropriate for the court to hear and determine that application at a final hearing, if the court decides to make a declaration of parentage in his favour that declaration will not of itself mean that Mr H can resume a role in T's life and will not confer upon Mr H parental responsibility in respect of T nor any other legal rights in respect of her.
BACKGROUND
The background to this matter can be stated shortly for the purposes of answering the questions that are set out in the first paragraph of this judgment.
T became the subject of care proceedings under Part IV of the Children Act 1989 and placement proceedings under Part 1 of the Adoption and Children Act 2002 in 2015. Mr H is not named on T's birth certificate. However, following the DNA paternity test dated 16 November 2015, to which I have referred and which indicated that Mr H is the birth father of T, he was made a party to those care proceedings. On 6 April 2016 District Judge Greensmith (as he then was) made a final care order and placement order in respect of T. Mr H sought permission to appeal the placement order. On 26 July 2016 His Honour Judge Duggan refused Mr H permission to appeal.
During the case management stage of this application a question arose as to whether His Honour Judge Duggan had, during the course of the aforementioned care proceedings, directed the local authority to cause T's birth certificate to be amended to record Mr H as her birth father, Mr H asserting (initially to CAFCASS) that Judge Duggan had made such an order in July 2016. However, an investigation of the court file reveals no such order made by Judge Duggan, who was in any event dealing with Mr H's application for permission to appeal the placement order rather than the substantive care and placement proceedings themselves, which as I have stated were heard by District Judge Greensmith (as he then was). The order of Judge Duggan dismissing the application for permission to appeal the placement order contains no order relating to T's birth certificate and a transcript of the final hearing of the care and placement proceedings before District Judge Greensmith contains no reference to amendment of T's birth certificate. In addition, there is no record of any application being made by Mr H for a declaration of parentage in respect of T prior to the application currently before this court.
Within the foregoing context, and whilst acknowledge that Mr H submits to the contrary, I am satisfied that no order was made by His Honour Judge Duggan directing the local authority to cause T's birth certificate to be amended to record Mr H as her birth father, whether by declaration of parentage pursuant to s 55A(1) of the Family Law Act 1986 or otherwise and make clear that I have proceeded on that basis.
Following refusal of permission to appeal, T was placed for adoption and an application was made for an adoption order by the then prospective adopters. Mr H applied for permission to oppose the making of the adoption order. That application was refused by District Judge Jones on 28 February 2017. T was made the subject of an adoption order pursuant to s 46 of the Adoption and Children Act 2002 on 12 April 2017. Notwithstanding the making of the adoption order on 12 April 2017, on 27 June 2019, and well out of time, Mr H applied for permission to appeal against the refusal of permission to oppose the making of the adoption order. On 17 July 2019 permission to appeal was refused by His Honour Judge Booth.
On 2 March 2020, Mr H issued his application for a declaration of parentage in respect of T. The C63 application form made no mention of the fact that T had been made the subject of an adoption order on 12 April 2017. It is this application that now comes before me.
As I have noted, the views of the adoptive parents have been conveyed to the court through the adoption agency by the statement of L dated 25 September 2020 on behalf of the adoption agency. They are summed up succinctly in the following, impressively child centred, passage from an email dated 10 July 2020 sent by the adoptive parents to L:
“We now understand that he would just like to ‘set the record straight’ and have his name put on T's birth certificate because after all he is T's biological father. We have no problems or issues with this because we believe it is important that T should know her full life history and all information should be correct and full without any “gaps”. We have already started doing some very basic life story work with T, and she already knows that she was a special baby who did not come out of “mummy's tummy” We have shown her...
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