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H v An Adoption Agency (No.2)(Declaration of Parentage and Public Policy) [2021] EWHC 1943 (Fam)

• Second judgement in the matter concerning the issues of declaration of parentage for an adopted child • Can a birth parent not previously registered on the Childs birth certificate apply for a declaration of parentage after that child has been adopted pursuant to s55A(91) Family Law Act • Does the court have power to disapply provisions of FPR 2010 r 8.22(1) to avoid the Childs adopted name appearing on the declaration of parentage • Would the Registrar General accept a declaration of parentage if the court had disapplied FPR r8.22(1) • If the Registrar General agrees to re-register the birth would he be able and willing to add the words adopted where the child who is the subject of the declaration has been made the subject of an adoption order by the court. • Is it contrary to public policy to allow such an application in these circumstances

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1. The application made by birth father, Mr H is for declaration of parentage in respect of his child T, who was adopted.

2. On 29 September 2020, McDonald J handed down his first judgment in this matter, in which he made a decision that the High Court has jurisdiction pursuant to s 55A(1) of the Family Law Act 1986 to grant to a birth parent 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.

3. That decision was entirely separate from from the question of whether such a declaration should be made following the adoption of the child. The first judgment was published as H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74. This judgement goes on to consider that question.

4. T became the subject of care proceedings under Part IV of the Children Act 1989, and placement proceedings under Part 1 of the Adoption and Children Act 2002, in 2015. Mr H was not named on T's birth certificate. Following a DNA paternity test which indicated that Mr H was the birth father of T, he was made a party to those care proceedings. On 6 April 2016  a final care order and placement order was made in respect of T.

5. Mr H sought permission to appeal the placement order which was refused. Following refusal of permission to appeal, 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 making of the adoption order. That application was refused and T was made the subject of an adoption order pursuant to s 46 of the Adoption and Children Act 2002 on 12 April 2017.

6. Mr H applied for permission to appeal against the refusal of permission to oppose the making of the adoption order which was also refused.

7. Mr H then issued his application for a declaration of parentage in respect of T on 2 March 2020. The C63 application form made no mention of the fact that T had been made the subject of an adoption order.

8. McDonald J considered the provisions of S58(1) FLA 1986 in respect of declaration of parentage applications, including the provisions of s57-65 of the Adoption and children Act 2002 which. Introduced a new statutory regime for the control of protected information including identifying information about an adopted person. In addition he applied the  FPR r.14.24 which creates a separate jurisdiction with respect to the control of the confidentiality of court adoption records,

9. McDonald emphasised that the fundamental nature of the change of legal status visited on the child and the adoptive parents by the making of an adoption order is further emphasised by the fact that an adoption order will act to terminate the birth parents' Art 8 right to respect for private and family life with the child  who was the subject of the adoption order.

10. He also considered whether or not the court is able to and if so should disapply some or all of the FPR 2010  rules most particularly FPR r8.22. In doing so he considered the decision of the court of Appeal in the case of Re F((Paternity:Registration) [2013]2 FLR 1036.

11. McDonald J came to the view that if discretion to disapply r 8.22(1) exists, as the Court of Appeal made clear in Re F (Paternity: Registration), such a discretion must only be utilised in exceptional circumstances and with an eye to the statutory context in which recourse is being had to the powers conferred by the procedural rules.

12. McDonald J came to the conclusion that whilst unusual, in circumstances where he  found that the court has jurisdiction under s.55A of the Family Law Act 1986 to grant to a birth parent 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, the application made by Mr H, and the situation it gives rise to, was not exceptional in nature, permitted as it is by the statutory scheme and open, in principle, to any birth parent seeking a declaration of parentage.

13. Having considered all the relevant authorities and statutory provisions applicable to the issues in the case, he concluded that it would manifestly be contrary to public policy to grant to Mr H a declaration of parentage in respect of T subsequent to her adoption.

14. McDonald. J expounded the essential elements of public policy as it related to adoption as follows:


a. The result of an adoption order should be that an adopted child ceases to be the child of his previous parent and becomes, for all purposes, the child of the adopters, that change of status being final and permanent and the family unit thereby created being inviolable.

b. The integrity of the adoption process is dependent on certain matters remaining confidential. In particular matters relating to the identity of adoptive parents, the adoptive name of the child and the location of the adoptive placement not ordinarily being disclosed to the natural parents unless agreed by the adoptive parents and/or mandated by the court.

c. The adopted person should be entitled to determine whether they wish to have information about their birth relatives or not and, if they choose to seek that information, should be provided with it after they have been offered counselling and intermediary support services.

d. 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.

e. The legal status of an individual in society should be spelled out accurately and in clear terms and recorded in properly maintained records.

15.  McDonald J declined to make a declaration of parentage in favour of Mr H on the ground that to do so would manifestly be contrary to public policy for the purposes of s.58(1) of the Family Law Act 1986

Case summary by Tanya Zabihi, Barrister, Albion Chambers

For full case, please see BAILII