Re Ms L & Anor

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:

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 (Footnote: 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.

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 (Footnote: ³) and has proposed (see §74) consideration of the procedural issues and associated implications by the Family Procedure Rule Committee. I support his proposal.

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.

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 she too has sufficient interest in the determination of this application to justify her in making the application.

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”:

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:

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 was born in 1963; her parents were unmarried teenagers. A note in Ms L’s adoption records reads as follows:

Ms L was accordingly placed for adoption at 6 weeks old, and adopted in 1964; she had a successful adoption. She reports that:

Ms L first made contact with her birth mother in the mid-1980s, and for a period of time they communicated; indeed, it is said that Ms L developed a reasonable relationship with her and her maternal birth family. This ended when Ms L’s birth mother indicated that she wished the contact to cease. In 2018 Ms L’s birth mother died. In or about 2009, Ms L’s birth mother had given Ms L the details of her birth father, PJ. Ms L made contact with him, and he responded to her warmly. They quickly established a mutual acceptance of their probable biological link, and PJ’s family welcomed Ms L into their family. Ms L became close with the family, and they remain so. Unexpectedly, PJ died in 2020. He died intestate; his sister, Ms T, who I joined as a respondent to this application (as mentioned above), is administering his affairs.

Interestingly, PJ’s main hobby was genealogy. He had researched family history for years, particularly on the maternal side. PJ’s maternal grandfather (Ms L’s great grandfather) was Italian; his family had emigrated from Italy to the North East of England in 1896 and had a large family of ten children. Through researching the family tree, PJ made many connections around the world with the Italian side of the family. PJ published a family history document for the benefit of the Italian family; materially, following his introduction to Ms L, he named Ms L and her children in the publication as members of his own family. It is no great surprise that Ms L has been able to identify very strong personal character traits in herself which she recognises that she shares with members of PJ’s Italian family. It is unlikely to be a coincidence that in her chosen career, she has been drawn in many different ways to Italy.

I am satisfied that this application is of very real importance to Ms L. She explains this as follows:

In a more recent statement, in which she sets out her detailed and thoughtful reflections of her situation, Ms L says this:

Ms L further explains that a practical benefit of a declaration of parentage for her will be her ability to acquire dual citizenship.

This takes me to the second issue identified above (§1(b)). Ms L has been able to lay before the court a considerable body of evidence which she maintains demonstrates that PJ is indeed her father:

Ms M was born in 1964. Her birth mother was a young woman from an aristocratic family in her early 20s, and was unmarried; it is believed that no one in the birth mother’s family knew at the time of the pregnancy, the birth of the baby, and/or the subsequent adoption. Within two months of her birth, Ms M was placed with substitute parents, and was adopted by them in the spring of the following year. Both of Ms M’s adoptive parents are now in fact deceased. Ms M maintains good relations with her adoptive brother and sister with whom she says she is close. As indicated above (§10), Ms M’s biological mother is still alive, and they made limited contact with each other over 30 years ago. They resumed contact in writing some five years ago and met again in 2021. Ms M’s birth mother rejects, and indeed closes down, any discussion with Ms M about her birth father; she had simply told Ms M that “he was sweet and charming” but little else. All other members of Ms M’s birth family have rejected her, and indicated that they want nothing to do with her, since she made herself known to them in recent years. She says:

Ms M has spent much of the last 40 years trying to trace her birth father. She started understandably with her adoption records; those had documented the father’s name as ‘BH’, although the records noted that there were various versions of the birth father’s forename and surname, neither of which are English names. ‘BH’ is unfortunately, for Ms M’s purposes, a very common name in the European country of BH’s origin. The Applicant engaged private investigators and tried various other routes to trace her birth father, to no avail. The breakthrough came when Ms M submitted DNA results to a number of genealogy websites searching for matches. In 2020, Ms M was notified that there was indeed a match who could be either a nephew or a half-brother. The man (in fact later identified as a half-brother) named his father on his family tree as ‘BE’. After further online searches Ms M found a number of other members of the wider family who were identified as cousins and siblings; they were all quick to accept that Ms M is indeed a member of their family. Ms M was however “devastated” to discover that the man for whom she had been searching for so many years had in fact died in 2010.

These researches enabled Ms M to obtain the birth and death certificates of the man she believed to have been her birth father. His full name was recorded ‘BHNE’ (i.e., including the names of BH as Ms M had originally believed, but with ‘E’ as the surname as her half-brother had referred). It transpired that BH had married a woman in 1965 (three months after Ms M’s birth); fortuitously, his marriage certificate recorded his address at the time. Significantly this is/was the same address held on the Barnardo’s adoption file for BH, the man identified in that documentation as Ms M’s birth father. It now appears that BH had altogether 11 children from a number of different relationships. Ms M has now discovered a great deal about BH – he was a brilliant academic, fluent in many languages, a womaniser, an alcoholic, and a gambler; he was also said to be a charming man with “a big heart”.

In most unusual, but extremely fortuitous, circumstances unconnected with this application (the details of which it is unnecessary to rehearse here), in late October 2021 (after this application had been issued), a bone from the body of BH (buried in his home country in Europe) was exhumed, and Ms M was able to persuade the authorities in that country, with support from BH’s family, to test her DNA against the bone of the deceased. This DNA test confirmed to a very high degree of probability indeed that the deceased (BH) is her birth father. Ms M wishes to take citizenship of the country of BH’s nationality, and has started to form plans to relocate to live in the country of her birth father and his family.

Ms M movingly describes in her statement how ‘monumental’ finding her birth family has been. In a passage of the evidence which echoes the evidence of Ms L she says this:

The statutory basis for the grant of a declaration as to parentage is to be found in Section 55A of the FLA 1986 which reads as follows:

Section 58 contains clear direction to the court, providing as follows:

The statutory scheme clearly envisages a route by which those in the position of the applicants can apply for a declaration as to parentage which in turn can lead to an amendment of their birth certificate (see section 55A(1) and (7)).

When I first reviewed these applications, my concern was how the route offered by section 55A FLA 1986 could fit with the provisions of section 46(2) and section 67 of the Adoption and Children Act 2002 (‘ACA 2002’) (and its predecessor legislation). Section 46(2) reads as follows:

Section 67 ACA 2002 in its previous legislative form was described by Swinton Thomas LJ in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 at 245 as follows:

At first blush, these passages from caselaw – and the well-established statutory principles which they articulate – did not fit comfortably, indeed appeared to undermine, the applicants’ case that they could obtain a declaration of parental status in respect of someone who had in law ceased to be their parent.

This apparent dichotomy (at the heart of the issue identified at §1(a) above) was addressed at some length by both Ms Fottrell QC and separately Mr Murray; they both drew heavily in their arguments on the judgment of MacDonald J in H v R & An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74 (Re H No.1), given in a case which raised similar (but not identical) issues to those which arise here. In that case the application for a declaration under section 55A FLA 1986 was made by a birth parent who sought to have his parentage of a child who had since been adopted formally confirmed by the Family Court in this way.

In Re H No. 1, MacDonald J declared himself (at §5), for the reasons he went on to discuss, to be:

MacDonald J’s decision was founded largely on the distinction between parentage as a matter of law and parentage as a matter of fact. The applicant in his case remained the parent in fact, even though his legal parental status had been expunged by the adoption order. This distinction was further elaborated upon in his later ruling in the same case, namely H v R & An Adoption Agency (Declaration of Parentage Following Adoption) [2021] EWHC 1943 (Fam) (Re H No.2) (see below). It will be seen that this distinction is also key to my decision in the instant cases.

In Re H No.1, MacDonald J discussed this issue comprehensively, and it is useful for me to reproduce the key section of his judgment here, as follows:

The nub of MacDonald J’s decision is his conclusion that within the context of two statutory frameworks (FLA 1986 and ACA 2002), it remains 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, without that factual determination coming into conflict with the status in law of the child and the adoptive parents.

Macdonald J found some support for his conclusions (see §52/53 of Re H No.1) in the decision of Hogg J in M v W (Declaration of Parentage) [2007] 2 FLR 270. In that case the applicant, an adopted person, sought a declaration as to his biological parentage in order that he could seek an amendment to his original birth certificate to include his natural father's name. No party in fact argued against the grant of the application. However, in a short reasoned judgment, Hogg J observed:

In H v An Adoption Agency (No.2) (Declaration of Parentage) [2021] EWHC 1943 (Fam) (“Re H No.2”), MacDonald J considered the merits of the application. At [48] he emphasised the formal, public, solemnity of the declaration and the process; he pointed out that:

MacDonald J proceeded in his judgment to discuss the process by which the register of births can be amended. At §49 (Re H No.2) he discussed the fact that section 14A of the Births and Deaths Registration Act 1953 (‘BDRA 1953’) conferred a discretion on the Registrar General to authorise the re-registration of birth following the making of a declaration; he pointed further to FPR 2010 r.8.22(1) which requires a name other than that which appears in the person's birth certificate to be stated on the declaration of parentage. On the facts of that case, MacDonald J dismissed the birth father’s application; in doing so, he made the following observations (at §59) which resonate with the instant facts:

Mr Murray in his helpful advice to the Court set out the legal issues comprehensively and opined (in line with MacDonald J’s analysis above) that:

He further advised that to rule otherwise would be to infringe the Human Rights of the applicants. He raised the persuasive point that while it is settled law that, both domestically and in Strasbourg, an adoption order will act to terminate the birth parents’ article 8 ECHR rights it not established that the child’s rights are similarly curtailed.

He added:

Ms Fottrell and Mr Murray considered whether in the circumstances obtaining here application can/should be made to the Registrar to amend the birth certificates of the applicants – per section 55A(7) FLA 1986.

Section 55A(7) of the FLA 1986 imposes a mandatory requirement upon an officer of the court to notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of a declaration under section 55A(1) of the FLA 1986. The prescribed period is now set out in rule 8.22 of the FPR 2010 i.e., 21 days beginning with the date on which the declaration was made (see Re H No.1 at §27).

Section 14A of the BDRA 1953 confers a discretion on the Registrar General as follows:

The Registration of Births and Deaths Regulations 1987 provide the mechanism by which re-registration can be achieved. Every form of re-registration involves an amendment to the original birth certificate without erasing the original entry. The amendment either takes the form of additional words included on the certificate or a note in the margin; importantly the entry will include both the names of the father and the fact that the subject child (now an adult) has been adopted. This will be stamped on the birth certificate.

Ms Fottrell and Ms Magennis, in their written and oral submissions, have made clear that neither applicant seeks to disrupt or set aside their adoption; there are neither legal grounds nor factual reasons for doing so in either case. Indeed, both applicants had generally positive experiences of adoption and have no wish to expunge that important aspect of their lives. What each seeks to do, through their applications, is to correct the historical record on their original birth certificates, so as to add to that document the name and identity of their birth father and thus formally complete their birth history. The bloodline connection is important to them both “in terms of both [their] long-term psychological and material welfare” (see §16 above). Materially both applicants have been able, through their researches, to identify shared personality characteristics with their birth fathers and families, and wish this now to be validated.

I have no doubt that for both of these applicants, it is a matter of very considerable personal importance that they are able to achieve legal recognition of their birth parentage. Such a declaration would represent both an acknowledgment of their true identity, and a degree of stability in that identity; I accept the case for Ms L and Ms M that such an order would permit and encourage the nurturing of family relationships with their newly found paternal families and would go some way – as Ms L explained – to:

With regard to the important issue identified at §1(a) above, I am satisfied that Ms L and Ms M have properly made this application under section 55A FLA 1986 and that the grant of the declaration which they seek is not contra-indicated by the fact that they had been adopted as infants, even though by that process they assumed a legal status so clearly defined by statute and explained by the judges to whom I have earlier made reference (§29 above). I am satisfied that the applications here, brought by adult adoptees, where no question of breach of confidentiality of a current adoptive placement arises, can be distinguished from that which obtained in Re H No.1 & 2 where the confidentiality of the placement would have been imperilled by the process of determining the application; there is therefore no public policy argument engaged here, as there was before MacDonald J. I am further satisfied that there is nothing in section 55A of the FLA 1986 (nor in Schedule 1 of the ACA 2002) which contra-indicates a declaration of parentage after an adoption order has been granted. I am equally clear that re-registration of a birth in these circumstances is permitted under the BDRA 1953.

With regard to §1(b) above, in each case (see §19 above for Ms L and §22-23 for Ms M) I can confirm that it has been “proved to the satisfaction of the court” (section 58 FLA 1986) that the man identified as the birth father, respectively PJ for Ms L and BH for Ms M, is indeed their birth father. In those circumstances, I am enjoined to “make that declaration unless to do so would manifestly be contrary to public policy”. As earlier indicated, there is no public policy reason for not making that declaration in in the instant cases.

I shall make the declaration of parentage in each case accordingly.

Finally, with regard to §1(c), it follows that the ground is now properly laid for the Registrar General to be notified of these declarations so that the original birth certificates can, as appropriate, be amended to include the name of the birth fathers. This can be done, I am satisfied, without negating or otherwise affecting the adoptive status of each applicant. The original birth certificates will again be annotated with the reference to the fact that the subject child (in each case the applicant) was indeed adopted. I am satisfied that these orders do not have the effect of controverting or undermining the validity or integrity of the later adoption certificates which will continue to exist unamended; in short, the adoption certificates continue to confirm the legal status of parentage many years ago, whereas the original birth certificates relate to the factual and biological evidence of the applicants’ parentage.

I shall therefore order that a copy of this declaration, and in each case the application, shall be sent to the Registrar General for Births and Deaths within 21 days so that consideration may be given to the re-registration of their original birth certificates as provided for herein under the BDRA 1953, section 14A.

That is my judgment.