H v R and another (No 2) (Attorney General intervening)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWHC 1943 (Fam) |
| Year | 2021 |
| Court | Family Division |
Children - Declaration of parentage - Adoption - Birth father applying for declaration of parentage in respect of adopted child - Whether possible to disapply procedural rules so as to protect confidentiality of adoptive placement - Whether making of declaration contrary to public policy -
The birth father of a child who had been adopted pursuant to Part 1 of the Adoption and Children Act 2002 applied for a declaration of parentage under section 55A(1) of the Family Law Act 1986F1 to enable him to be named on the birth certificate as the child’s father. The judge held that there was jurisdiction to grant a declaration of parentage in such circumstances and listed the matter for final hearing. The local authority adoption agency contended that the declaration ought to be refused on the grounds that to grant it would “manifestly be contrary to public policy”, within section 58(1) of the 1986 Act. In particular the agency argued that, by virtue of FPR r 8.22(1)F2, any declaration of parentage in favour of the birth father would have to contain the child’s adoptive name, thus risking the confidentiality of the adoptive placement. The Registrar General indicated that if the court were to disapply FPR r 8.22(1) so that the child’s birth name, as opposed to her adopted name, appeared on the declaration of parentage, then the Registrar General would be prepared to accept such an order in the present case and, if the birth were re-registered pursuant to section 14A of the Births and Deaths Registration Act 1953F3, would also mark the re-registered entry with the word “adopted”, notwithstanding that there was no statutory duty to do so.
On the application—
Held, refusing the application, (1) that if a discretion to disapply FPR r 8.22(1) existed, it could be exercised only in exceptional circumstances and having regard to the statutory context in which recourse was being had to the powers conferred by the procedural rules; that it could not be said that an application by a birth parent for a declaration of parentage under section 55A of the Family Law Act 1986 in respect of a child who had been lawfully adopted pursuant to Part 1 of the Adoption and Children Act 2002, and the situation to which such an application gave rise, was exceptional in nature; that, further, it would not be appropriate to require the Registrar General to accept a declaration of parentage that was inaccurate by reference to the mandatory requirements of FPR r 8.22(1) and to act ouside the statutory regime by taking ad hoc steps to re-register the birth of a child following the granting of a declaration of parentage in circumstances where Parliament had not provided for that course; and that, accordingly, the court would decline to disapply the terms of FPR r 8.22(1) (post, paras 57, 62–67).
(2) That, when determining whether a declaration of parentage would “manifestly be contrary to public policy” within section 58(1) of the 1986 Act, the task of the court was to measure the grant of the declaration against the relevant principles of public policy recognised by the law; that, where a declaration of parentage was sought in respect of a child who had been lawfully adopted pursuant to the 2002 Act, the relevant principles of public policy were (i) that the result of an adoption order should be that an adopted child ceased to be the child of his or her previous parents and became, for all purposes, the child of the adopters, such change of status being final and permanent and the family unit thereby created being inviolable, (ii) that the integrity of the adoption process depended on certain matters, in particular the adoptive name of the child remaining confidential, (iii) that the adopted person should be entitled to determine whether they wished to have information about their birth relatives or not and, if they chose to seek such information, should be provided with it after they had been offered counselling and intermediary support services, (iv) that an adopted child should, where possible and appropriate, know his or her biological parentage and other cardinal matters relating to his or her origins, including cultural and genetic information, and (v) that the legal status of an individual in society should be spelled out accurately and in clear terms and recorded in properly maintained records; and that, applying those principles to the present case, and taking into account that any declaration of parentage would have to contain the child’s adoptive name pursuant to FPR r 8.22(1), it would manifestly be contrary to public policy within section 58(1) of the 1986 Act to grant a declaration of parentage to the birth father in respect of the child subsequent to her adoption (post, paras 24, 25, 58, 59, 68, 72, 73, 76).
Per curiam. (i) When FPR Pt 8 was drafted it may not have been appreciated that it is open to a birth parent to apply for a declaration of parentage under section 55A of the 1986 Act in respect of a child who has been made the subject of an adoption order. The Family Procedure Rule Committee may now wish to consider the procedural issues that arise when such an application is made (post, para 74).
(ii) It is notable that while, pursuant to paragraph 5 of Schedule 1 to the 2002 Act, an entry in the registers of live-births will be marked with the words “adopted” when the birth is re-registered following adoption, there is no equivalent duty where re-registration has occurred under section 14A of the Births and Deaths Registration Act 1953 following notification to the Registrar General under section 55A(7) of the 1986 Act of a declaration of parentage made under section 55A. There is accordingly no statutory provision pursuant to which the word “adopted” would be added to the name of the adopted child in the birth register following re-registration consequent upon the granting of a declaration of parentage (post, para 75).
The following cases are referred to in the judgment:
AS v CS
B (A Child), In re
B (Adoption: Jurisdiction to Set Aside), In re [
B and B v A County Council
C (A Minor) (Adopted Child: Contact), In re [
Dunkley v Dunkley
Egerton v Brownlow (
Eski v Austria (Application No 21949/03) [
F (Paternity: Registration), In re
FL v Registrar General
Fender v St John-Mildmay [
H v R (No 1)
Janson v Driefontein Consolidated Mines Ltd [
L (Adoption: Disclosure of Information), In re [
M and N (Twins: Relinquished Babies: Parentage), In re
M v W (Declaration of Parentage)
Monkland v Jack Barclay Ltd [
NB v MI (Capacity to Contract Marriage)
P (An Adult), In re
Pini v Romania (Application Nos 78028/01 and 78030/01) (
Richardson v Mellish (
S (A Child) (Declaration of Parentage), In re
Seddon v Oldham Metropolitan Borough Council
The following additional cases, supplied by courtesy of counsel, were cited in argument or referred to in the skeleton arguments:
Golubovich v Golubovich
J (A Child) (Adopted Child: Contact), In re
J (Adoption: Non-Patrial), In re [
Lachaux v Lachaux
Puttick v Attorney General [
S (A Minor) (Adopted Child: Contact), In re [
T (Minors) (Adopted Children: Contact), In re [
X (A Child) (Parental Order: Time Limit)
APPLICATION for a declaration of parentage
On 2 March 2020 the applicant, H, who was the biological father of the child, T, as confirmed by DNA paternity testing dated 16 November 2015, applied for a declaration of parentage pursuant to section 55A(1) of the Family Law Act 1986 so as to enable him to be named on T’s birth certificate as her father. T had been made the subject of an adoption order made pursuant to Part 1 of the Adoption and Children Act 2002 on 12 April 2017. The respondents to the application were R, the birth mother of T, who did not participate in the proceedings, and the local authority adoption agency that had placed T for adoption. T’s adoptive parents were aware of the application but did not wish to take part in the proceedings.
In a judgment dated 18 November 2020 MacDonald J [2020] EWFC 74; [2021] Fam 349 held that the High Court had jurisdiction to grant the declaration sought and listed the matter for a final hearing to determine whether it was in the child’s best interests to grant the application. On the invitation of the court the Attorney General intervened in the application.
The hearing was...
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