Re Ms L; Ms M (Declaration of Parentage)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 06 May 2022 |
| Neutral Citation | [2022] EWFC 38 |
| Court | Family Court |
| Docket Number | Case No: NE21P00484 & NE21P07404 |
[2022] EWFC 38
THE HONOURABLE Mr Justice Cobb
Case No: NE21P00484 & NE21P07404
IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF SECTION 55A FAMILY LAW ACT 1986
Sitting remotely as if from
Royal Courts of Justice
Strand, London, WC2A 2LL
In the matter of Ms L
Deirdre Fottrell QC & Olivia Magennis (instructed by Goodman Ray) for Ms L, Applicant
Ms T (Executrix of the Estate of Mr D, deceased), Respondent, was neither present nor represented
Simon Murray (instructed by the Government Legal Department) for the Attorney General as Advocate to the Court
In the matter of Ms M
Deirdre Fottrell QC & Olivia Magennis (instructed by Goodman Ray) for Ms M, Applicant
Simon Murray (instructed by the Government Legal Department) for the Attorney General as Advocate to the Court
Hearing dates: 28 March 2022
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.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Sir James Munby P in In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602 (Fam) at §3 rightly asked, in my view, whether there can be a more important question – emotionally, psychologically, socially and legally – than ‘who is my parent?’.
That question of fundamental identity lies close to the centre of two separate applications which are before the court, brought by unrelated applicants under the provisions of section 55A Family Law Act 1986 (‘ FLA 1986’). The applications here raise identical issues, namely:
a. Whether an adult person, who had been adopted as a child can subsequently (in both cases, many decades later) obtain a declaration of parentage in relation to the identity of their biological 1, father;
b. Whether, in each case, on the facts, such a declaration is appropriate;
c. And (following on from the above) whether rectification of the applicants' original birth certificate (so as to add the name of a biological father, or ‘birth father’ as I shall refer to him) is possible, and compatible with adoption legislation.
These two applications have been brought entirely independently, and in terms of timing coincidentally, by two unrelated applicants. Ms L and Ms M are indeed unaware of each other's identities. The applications were issued by the Family Court sitting in Newcastle Upon Tyne. When I became aware of the applications, I case managed them to hearing on the same day. I dealt with the factual issues in short sequential hearings, and then brought the cases together for a plenary hearing involving both applicants 2 to discuss the legal implications.
When the applications first came to my attention, Ms L and Ms M were both unrepresented. These were unusual applications without apparent precedent. I contacted the Attorney General's Office to enquire whether she would be prepared to appoint an advocate to the court. She did so, and I am grateful to Mr Murray for his written advice. At an earlier case management hearing I also advised Ms L and Ms M of the existence of ‘Advocate’ (formerly Bar Pro Bono Unit), the charity which helps to find free legal assistance from volunteer barristers. Through this, Ms M obtained the services of Ms Fottrell QC and Ms Magennis; in turn, Ms M was supported by Ms Dally of Goodman Ray. That expert legal team then offered similar support to Ms L. I am particularly grateful to the lawyers (all counsel and solicitors) for the applicants who have acted for them most ably, and without fee.
Procedural issues
The applications have been made under the Part 19 FPR 2010 procedure (in accordance with rule 8.1 FPR 2010). There is limited assistance, from Practice Direction 19A or otherwise, to guide the process of an application such as this; MacDonald J refers to the lack of procedural ‘clarity’ (my word not his) at §10(i)-(vii) and §11 of Re H No.2 3 and has proposed (see §74) consideration of the procedural issues and associated implications by the Family Procedure Rule Committee. I support his proposal.
Ms L's application
At an earlier case management hearing, I determined on the facts that, within the meaning of section 55A(2), (3) and (4) FLA 1986, Ms L is domiciled in England & Wales, and that she has sufficient interest in the determination of this application to justify her in making the application. I joined Ms T to the application; she is the executrix of the estate of the man whom Ms L asserts is her birth father (who I shall refer to as ‘PJ’). His estate has not yet been distributed. Ms T has been served with notice of the hearing, but has not attended. Ms L's adoptive parents are both deceased; they would otherwise have been automatic respondents to the application. I considered, but regarded as unnecessary, the joinder of PJ's known children; for reasons which I do not need to discuss here, they did not have any contact with PJ or other members of his family since the early 1970s.
Ms M's application
At the same earlier hearing, I determined on the facts that, within the meaning of section 55A(2), (3) and (4) FLA 1986 Ms M is also domiciled in England and Wales, and that
I was asked to consider whether Ms M's birth mother should be joined as a party to the application. Rule 8.20(1) of the Family Procedure Rules 2010 (‘ FPR 2010’) defines who should be respondents to an application for a declaration of parentage. The respondents “will be”:
i) “The person whose parentage is in issue except where that person is a child;
ii) Any person who is or is alleged to be the parent of the person whose parentage is in issue, except where that person is the applicant or is a child”.
It is also incumbent on the applicant to “include in [her] application particulars of every person whose interest may be affected by the proceedings and his relationship to the applicant” ( rule 8.20(2) FPR 2010).
Notwithstanding the clarity of those rules, the FPR 2010 further allows the court the opportunity to retain general control (in fulfilment of its overriding objective) over the joinder of parties to any proceedings (see rule 1.4(2)(b) FPR 2010). Ultimately the question of who should be the respondent to such an application is a matter for the court, and is likely to be fact-sensitive in each and every case.
Ms M opposed the joinder of her birth mother as a respondent. She made clear that if her birth mother were to learn of the existence of this application, this would bring to a certain end their fragile relationship. Ms M does not want this; the relationship – albeit not altogether easy – is important to her. She said this:
“She has been clear that she wants nothing to do with the past. I do not think that she will want to be involved and there is a real risk that by serving her with notice I have made this application will just make her shut down and I fear that my relationship with her will be severed by her. When my mother fell pregnant with me, she told no one. She did not tell her parents or her friends. She had me in secret and when she signed the paperwork for the adoption in 1964 giving me up for adoption, I do not doubt that she thought that was forever. The world has changed, but I believe that my birth mother is entitled to her own space, privacy, freedom and anonymity … if this court were to write to her, I do not think that she would engage in these proceedings and I know that to take this step would emphatically mean the end of our very fragile relationship … I still want to retain, where possible, some semblance of relationship with my birth mother. My mother's name is not being removed from the birth certificate. The application I am making is about my father and I. It will not affect her status on my birth registration.”
I took the view, encouraged by Ms Fottrell QC and supported by Mr Murray, that there was no obligation on me to join Ms M's birth mother in order to do justice to the case, and, in fulfilment of the overriding objective to that end, I so ruled. In reaching this conclusion I exercised the wide discretion afforded to me to regulate this legal process – this power entitles me to exclude parties from hearings, to withhold information from parties, to discharge parties from the proceedings, and to dispense with the rules altogether. These powers can be, and often are, exercised in accordance with the overriding objective provided that they cohere with the principles of law and justice which have been developed and recognised both at common law and under the Human Rights Act 1998. I find that there is no prejudice to Ms M's birth mother by not being a party to the process, but I am satisfied that much potential harm could be done to her and to Ms M by alerting her to, and possibly drawing her into, this litigation.
Ms L: the facts
Ms L was born in 1963; her parents were unmarried teenagers. A note in Ms L's adoption records reads as follows:
“… [the biological mother] would have married the putative father if she had had a chance. But the young man is practicing Roman Catholic as are all his family and the priest was...
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