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Home > Judgments > 2020 archive

H v An Adoption Agency (Declaration of Parentage following Adoption) [2020] EWFC 74

Mr Justice MacDonald determined that the court has jurisdiction pursuant to s.55A(1) of the Family Law Act 1986 to grant a declaration of parentage to a birth parent of a child who had been lawfully adopted. The court referred a number of points to the Family Procedure Rules Committee for their consideration as when the rules set out in Part 8 of the FPR 2010 were drafted, it might not have been appreciated that this was possible, as well as that in some cases, it may be appropriate to grant such a declaration.

Introduction
This was a decision of Mr Justice MacDonald regarding an application made by Mr H for a declaration of parentage in respect of an adopted child, referred to as T. Mr H is the birth father of T. The respondents to the application were R (birth mother), the local authority (LA) and the adoption agency that placed T for adoption.

T had been joined to the proceedings, but this order had been discharged. The adoptive parents were not joined to the proceedings, but their views were conveyed to the court in a statement. The Attorney General was given notice of the proceedings and served with copies of the relevant documents but did not respond. 

Background
T became the subject of care and placement proceedings in 2015. Mr H was not named on T's birth certificate but a DNA paternity test indicated that he is T's birth father and so he was made a party to those care proceedings. Final care and placement orders were made on 6 April 2016. Mr H sought permission to appeal, which was refused. Following this, 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 order. This application was refused and an adoption order was made on 12 April 2017. On 27 June 2019, well out of time, Mr H applied for permission to appeal against the refusal of permission to oppose the making of the adoption order. This was also refused.

Mr H then applied for a declaration of parentage in respect of T. He was acting in person. Mr H's aim was to secure an amendment to T's original birth certificate to show him as her biological father. However, he considered that this would also lead to him resuming a role in T's life. The court made clear to Mr H that 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.

Issues
There were the following questions for the court:

1. Does the court have jurisdiction pursuant to s.55A(1) of the Family Law Act 1986 (s.55A(1)) to grant to a birth parent in the position of Mr H 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?

2. 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?

3. If so, should the court refuse at this stage to hear Mr H's application or list the matter for a final hearing?

The Law
The court set out the relevant law from the Family Law Act 1986 regarding declarations of parentage [paras 22-29] and the relevant law from the Adoption and Children Act 2002 regarding the consequences of an adoption order for the birth parent and for the child [paras 30-39].

Decision
MacDonald J was satisfied that the court does have jurisdiction in an appropriate case, pursuant to s.55A(1) to grant to a birth parent a declaration of parentage in respect of a child following the lawful adoption of that child.

He was satisfied that it is possible to read the words "any person" in s.55A(1) as encompassing a birth parent in the position of Mr H whose child had been made the subject of an adoption order pursuant to s.46 of the Adoption and Children Act 2002 without the risk of conflicting decisions being arrived at due to the terms of s.67 of the 2002 Act, which concerns the question of who are the parents of the child as a matter of law and not wider questions of fact such as the child's biological parentage. Therefore, it is possible for a birth parent to establish the truth of the proposition contended for, namely that he or she is as a matter of fact the parent of the adopted child and obtain a declaration, without that factual determination coming into conflict with the status in law of the child and the adoptive parents under s.67 of the Adoption and Children Act 2002.

MacDonald J was further satisfied that s.55A(5) of the Family Law Act 1986 does allow, again in an appropriate case, there to be 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).

When addressing the question of whether the court should refuse to hear the application or list the matter for a final hearing, there were a number of matters to be balanced in this case, including that the adoptive parents believe it is important that T should know her full life history, that all official information in respect of her should be correct and without gaps and that, in this context, that they do not object to Mr H's name being placed on T's birth certificate but, they raise concerns that if Mr H's application is granted it has the potential to cause disruption in the future should Mr H wish to cause difficulties.

However, MacDonald J was not satisfied that it was is in T's best interests for the court to refuse at a preliminary stage to hear Mr H's application and he listed the application for a final hearing.

Referral to the Family Procedure Rules Committee
It was noted that potential for disruption also flowed from the fact that neither the Family Law Act 1986 nor the Family Procedure Rules 2010 contain the protective provisions that are ordinarily incorporated where an application can be made by a birth parent with respect to a child who has been made the subject of an adoption order and which account for the fact that the child has been adopted.

There is no permission stage provided for in the statute. Further, the effect of the rules in Part 8 of the FPR is that the adoptive parents will be amongst the automatic respondents to the application for a declaration of parentage in respect of a child who has been made the subject of an adoption order (and the procedural protections provided by FPR r.14.2, which provides for a serial number to be applied to protect the identity of the adopters, does not apply to applications under s.55A(1)).

In addition, if a declaration of parentage is made in favour of a birth parent with respect of a child who has been made the subject of an adoption order under the Adoption and Children Act 2002, pursuant to FPR r.8.22(1) the declaration in favour of the birth parent made by the court must state the name given to the child by the adoptive parents if different (in circumstances where, if the child is known by a name other than that which appears in that child's birth certificate, r 8.22(1) requires that other name must also be stated in any order and declaration of parentage), which order would, by FPR r 8.22(2), have to be sent to the Registrar General within 21 days beginning with the date the declaration was made for the Registrar General to consider whether re-registration should take place under the provisions of the Births and Deaths Registration Act 1953. The consequences of re-registration also have the potential to cause disruption.

In this case, the adoptive parents had already been given informal notice of Mr H's application and their views had been ascertained and so the issue of disruption was not as powerful at this stage of the court's enquiry as the application had already caused a degree of disruption to the equilibrium of the family. However, had they not had this notice, then the issue of potential disruption was likely to be a "weighty factor" in favour of refusing an application at a preliminary stage.

The court was concerned that the application of the current rules would mean that T's adoptive name would appear on the declaration of parentage. So, it was important to find out, before the final hearing, whether a declaration of parentage was the only way of achieving Mr H's aim. For example, by HM Passport Office Form GRO185 an application can be made to re-register a child's birth to add the details of the natural father. The court ordered the adoption agency to make enquiries of the Registrar General to establish whether this procedure can be utilised to amend the birth certificate without the need for a declaration of parentage and whether, the Registrar General would also, as a matter of practice, add the word "Adopted" upon re-registration too.

If this procedure was not available, then the following aspects of the rules will remain of particular relevance at the final hearing of Mr H's application:

i) By FPR r 8.22(1), were the court to make a declaration in favour of the applicant that declaration, that declaration must, pursuant to FPR r 8.22(1), contain T's adoptive name, which at present is confidential to the adoptive parents. It is not clear whether the court has power to disapply the provisions of FPR r 8.22(1).

ii) FPR r 8.22(2) pursuant to r 8.22(2), a copy of the declaration would have to have to be sent to the Registrar General within 21 days beginning with the date the declaration was made for the Registrar General to consider whether re-registration should take place. It is not clear whether the Registrar General would accept an order in respect of which the court has disapplied FPR r 8.22(1) if it has the power to do so [para 79].

In the absence of a procedure for amending T's birth certificate that does not rely on a declaration of parentage, when the court considers the merits of Mr H's substantive application, and in particular the application of the public policy provisions of s 58(1) of the Family Law Act 1986, the court will need to consider whether it has the power to disapply FPR r 8.22(1) to avoid T's adoptive name appearing on the declaration of parentage having regard to the need to maintain the confidentiality of the adoptive placement. Further, the court will also need to understand whether the Registrar General would accept a declaration in respect of which the court has disapplied FPR r 8.22(1), if it has the power to do so and whether, if the Registrar General exercised his discretion to re-register the birth following the granting of a declaration of parentage, the Registrar General would also, as a matter of practice, add the word "Adopted" to upon re-registration following a declaration of parentage in favour of a birth parent in circumstances where the child who is the subject of the declaration has been made the subject of an adoption order by the court. Within this context, I will make directions with a view to ensuring these issues are fully ventilated at the final hearing [para 80].

The court therefore referred all these matters to the Family Procedure Rules Committee for their consideration:

"…this case raises the wider issue of whether, in the absence of a permission stage in s 55A of the Family Law Act 1986, an amendment is required to FPR r 8.20(1) to legislate for the fact that applications under s 55A(1) of the 1986 Act can, as I have found, be made by birth parents. I also note that the Form 63 application for a declaration of parentage contains no provision for indicating the child whose parentage is in issue has been adopted. Whilst I note that the court retains control over who is respondent to any proceedings pursuant to Rule 1.4(2)(b) FPR 2010, in circumstances where, as matters, stand FPR r 8.20(1) means that adoptive parents are automatic respondents I consider it appropriate to refer these matters to the Family Procedure Rules Committee for their consideration." [para 81]. 

Case sumary by Sophie Smith-Holland, barrister, St John's Chambers

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