Should a Declaration of Parentage be made after a child has been adopted?

That was the question which faced the High Court in June 2021 after a Father, Mr H, applied for such a declaration in the case of H v An Adoption Agency [2021] EWHC 1943 (Fam).

MacDonald J decided in September 2020 that the High Court does have jurisdiction pursuant to s.55A(1) Family Law Act 1986 (FLA) to grant a birth parent a declaration of parentage in respect of a child following the child’s lawful adoption under Part 1 Adoption and Children Act 2002 (ACA).

The High Court determined the matter having listed the application for a Final Hearing, and hearing submissions from all parties, including from the Attorney General, as the court considered this to be a matter of public policy.

In brief, the background of this matter is that the child, T, was subject to care proceedings in 2015. Mr H was confirmed to be T’s biological Father by DNA testing in November 2015, however no order was made reflecting that status within the care proceedings. T was made subject of a Final Care Order and Placement Order on 6th April 2016. Mr H was refused permission to appeal the Placement Order in 2016, and was refused permission to oppose the making of the Adoption Order in February 2017. Mr H submitted a further application for permission to appeal the refusal of permission for him to oppose the making of the adoption order in 2019, an application which was made out of time. The application for a declaration of parentage was subsequently made in 2020 and Mr H’s application did not bear reference to the fact that T had been adopted.

When the matter came before the court in September as a preliminary issue, the court outlined 8 particular matters of concern [10]:

  • The rules at Part 8 of the FPR 2010 did not appear to appreciate that it is open to a birth parent to apply for a declaration of parentage in respect of a child who has been adopted.
  • Any declaration must contain T’s adoptive name, which is confidential to the adoptive parents.
  • It was not clear on current authority whether the court has power to disapply the provisions of the FPR r.8.22(1).
  • A copy of the declaration would 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 was not clear whether the Registrar General would accept an order if the court had disapplied r.8.22(1) FPR.
  • That there is no equivalent to paragraph 5 of schedule 1 of the ACA in the Births and Deaths Registration Act 1953, and therefore no statutory provisions pursuant to which the word ‘adopted’ would be added to T’s name in the birth register following re-registration.
  • The terms of FPR r.8.20(1) mean that the adoptive parents are automatic respondents and Form C63 contains no provision for indicating that the child whose parentage is in issue has been adopted.
  • Within that context and when considering Mr H’s application and the public policy provisions of s.58(1) FLA, the court would need to consider whether it had the power to disapply FPR r.8.22(1) to avoid T’s adoptive name appearing on the declaration of parentage.
  • The court would 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 had to do so, and whether, as a matter of practice, the Registrar General would be willing to add the word ‘adopted’ upon re-registration following a declaration being made.

In respect of (viii), the Registrar General did confirm in January 2021 that in this case, the declaration would be accepted pursuant to s.55A(7) FLA if the court were to disapply FPR r.8.22(1), and that the Registrar General would also mark the re-registered entry with the word ‘adopted’ if the declaration was made.

The Adoption Agency argued that it would be contrary to public policy in these specific circumstances to make such a declaration where the child has been the subject of an adoption order, arguing that the application by Mr H revealed a gap within the statute and procedure that inadvertently created a back door into what is “the inviolable, final and confidential nature of an adoptive placement” [14].

The Attorney General’s position was that in the event that FPR r.8.22(1) could not be disapplied by the court, and in the event that no alternative mechanism could be implemented to protect the confidentiality of the adoptive placement, then the public policy exception under s.58(1) FLA should be invoked. The Attorney General submitted that there was a “very strong public policy reason for a declaration of parentage not being made if the confidentiality of the placement may be put at risk” [19].

MacDonald J was directed to two authoritative decisions (Re F (Paternity: Registration) [2013] 2 FLR 1036 and the decision of Mostyn J in AS v CS [2021] 4 WLR 68) suggesting that the court is able to disapply r.8.22(1) of the FPR.

MacDonald J agreed with submissions on behalf of the Adoption Agency and the Attorney General that it would be “manifestly contrary to public policy to grant Mr H a declaration of parentage in respect of T subsequent to her adoption” [58].

The court did not feel that it was appropriate to disapply r.8.22(1), commenting that:

both Thorpe LJ and Black LJ (as she then was) appeared in Re F (Paternity: Registration) to be prepared to proceed on the basis that such a power existed (albeit Black LJ declined to express a definitive view on that question), they were each equally clear that the exercise by the court of a discretion consequent on that power would be significantly circumscribed. In particular, any disapplication of FPR r. 8.22 must be justified by exceptional circumstances and must be exercised having regard to the statutory context.” [62]

The Judge however was satisfied that, as in the case of Re M & N [2017] EWFC 31, there are other ways for T to find out who her birth father is, such as through life story work.

Finally, the Judge commented that the FPR Committee may wish to consider that:

  • Form C63 contains no provision for indicating that the child whose parentage is in issue has been adopted.
  • FPR r.8.20(1) makes the adoptive parents automatic respondents to an application under s.55A FLA.
  • The procedural protections of FPR r.14.2 (providing for a serial number to be assigned to keep the identity of the adopters confidential) do not apply to applications under s.55A FLA.
  • There is no permission stage where an application for a declaration of parentage is made by a birth parent with respect to a child who has been adopted.
  • Pursuant to FPR r.19.5, adoptive parents must file an acknowledgement of service accompanied by evidence upon which they intend to rely.
  • Were the court to make a declaration, then, pursuant to FPR r.8.22(1), the declaration must contain the adoptive name of the child, posing a threat to the confidentiality of the placement.
  • Whilst the court had proceeded in this instance on the basis that there is discretion to disapply FPR r.8.22(1), it remains unclear whether the court in face has the power to disapply the provisions of that rule.

It is therefore unlikely that this is the end of the story for declarations of parentage post-adoption. Whether this recent case will prompt review by the FPR Committee or policy change through Parliament remains to be seen.