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Aylward-Davies v Chesterman & Anor [2022] EWFC 4

Application for a Declaration of Parentage under s.55A of the Family Law Act 1986 in respect of a deceased biological father

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Ms Aylward-Davies, "Ruth," was born out of wedlock from an affair between a teenage Orthodox Jewish woman ("Constance") and an Irish Catholic man ("Patrick"). Patrick did not wish to marry Constance when she became pregnant and as such, she quickly found another man to marry and stand in as Ruth's father ("Dennis"); abortion was illegal at the time and she could not contemplate giving up the child for adoption. When Ruth was born, Dennis was registered as her father, notwithstanding that he knew that he was not. Ruth was not told the truth until she was 15 years old.

Ruth did not seek out her biological father until adulthood, when she was training to be a psychologist. She spoke to her mother, who gave her Patrick's name, and she located him online; he was based in Ireland. She telephoned him for the first time in 2004 and she later was introduced to his wife and two children, becoming close to them. Sadly, Patrick died in 2008 following major spinal surgery.

The current proceedings concerned Ruth's application for a Declaration of Parentage under s.55A of the Family Law Act 1986, with a view to the Registrar-General for Births and Deaths amending her birth certificate to reflect Patrick as her legal father. Whilst Patrick had died in 2004, the application was only made in 2021, when Constance received confirmation that Dennis was dead; she did not want the application to be made whilst he was still alive as she was concerned it would lead to him finding her and Ruth (he had been an abusive husband). Patrick's widow and his children supported Ruth's application.

In considering her application, Mr Justice Mostyn first dealt with the question of whom the respondents to the application should be. He confirmed that Ruth had been correct to identify Constance and Patrick as the respondents, though the latter technically should have been his estate. The court felt that there should have been consideration of notice of the application being given to a representative of Dennis' estate at an earlier hearing; however, given the specific facts of the case, the court held that "identifying and notifying such a representative would be a protracted process and a pointless exercise" [18].

Mr Justice Mostyn went on to consider the procedure for dealing with the application. Whilst s.55A(1) permits a declaration of parentage application to be issued in either the High Court or the Family Court, he held that Ruth should have made her application to the Family Court pursuant to rule 5.4 of the Family Procedure Rules 2010 ("FPR 2010"). Once made, the application is governed by Part 8, Chapter 5 of the FPR 2010. The court also took the opportunity to set out those considerations that would have been in play should a member of the press or a legal blogger attended the hearing [26-31].

The court then considered the criteria under s.55A(2) and s.58. In respect of s.58, Mr Justice Mostyn was satisfied on a balance of probabilities that Patrick was Ruth's biological father, notwithstanding the lack of any DNA evidence. Further, he could not see any reason why it would be manifestly contrary to public policy to grant Ruth's application. As such, he made the Declaration of Parentage as sought.

Case summary by Bianca Jackson, Barrister, Coram Chambers

For full case, please see BAILII