Case No. NE21P00484-&-NE21P07404

s, such a declaration is appropriate;c.And (following on from the above) whether rectification of the applicants’ original birth certificate (so as to add the name of a biological father, or ‘birth father’ as I shall refer to him) is possible, and compatible with adoption legislation.3.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 applicants2 to discuss the legal implications. 4.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.Procedural issues5.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.23 and has proposed (see §74) consideration of the procedural issues and associated implications by the Family Procedure Rule Committee. I support his proposal.Ms L’s application6.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.Ms M’s application7.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. 8.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”: i)“The person whose parentage is in issue except where that person is a child;ii)Any person who is or is alleged to be the parent of the person whose parentage is in issue, except where that person is the applicant or is a child”.It is also incumbent on the applicant to “include in [her] application particulars of every person whose interest may be affected by the proceedings and his relationship to the applicant” (rule 8.20(2) FPR 2010).9.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.10.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:“She has been clear that she wants nothing to do with the past. I do not think that she will want to be involved and there is a real risk that by serving her with notice I have made this application will just make her shut down and I fear that my relationship with her will be severed by her. When my mother fell pregnant with me, she told no one. She did not tell her parents or her friends. She had me in secret and when she signed the paperwork for the adoption in 1964 giving me up for adoption, I do not doubt that she thought that was forever. The world has changed, but I believe that my birth mother is entitled to her own space, privacy, freedom and anonymity … if this court were to write to her, I do not think that she would engage in these proceedings and I know that to take this step would emphatically mean the end of our very fragile relationship … I still want to retain, where possible, some semblance of relationship with my birth mother. My mother’s name is not being removed from the birth certificate. The application I am making is about my father and I. It will not affect her status on my birth registration.” 11.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: the facts12.Ms L was born in 1963; her parents were unmarried teenagers. A note in Ms L’s adoption records reads as follows:“… [the biological mother] would have married the putative father if she had had a chance. But the young man is practicing Roman Catholic as are all his family and the priest was consulted and he advised against it….. ”In a form generated by the relevant Adoption Society in June 1963, setting out the bare facts of the case, against the question: “Why is the child offered for adoption?”, the following was recorded: “My parents think I’m too young to keep a baby”. And later: “I think adoption is best for the baby” (this last comment was signed by the birth mother).13.Ms L was accordingly placed for adoption at 6 weeks old, and adopted in 1964; she had a successful adoption. She reports that:“My adoptive parents were open with me about the fact that I had been adopted and gave me as much information as they knew about the circumstances surrounding my adoption… My adoptive parents knew about and supported my efforts to locate my birth parents.”Ms L’s adoptive parents have now both died. 14.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.15.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.16.I am satisfied that this application is of very real importance to Ms L. She explains this as follows:“A Declaration of Parentage is personally a very important step for me as it strongly relates to my identity. My bloodline connection is important in terms of both my long-term psychological and material welfare.”17.In a more recent statement, in which she sets out her detailed and thoughtful reflections of her situation, Ms L says this:“Technically, my locus standi in relation to my application is not just as applicant, but also adopted child. As such, I am the host of the complex legal and factual situation of adoption; factually, I was born of my birth parents but I am also the legal child of my adoptive parents. I have grown up knowing I have a foot in both camps, each as formative as the other in terms of formulating my identity for myself. However, having been adopted in the 1960s, I am also part of a model of broken connection, which has in part, been decided upon through statute, decisions of the court and by rules relating to birth registration. Adoption in the 1960s very often responded to the stigma of illegitimacy and the circumstances meant adoptees were unable to have any voice in this process. Now adoption is far more open and inclusive; birth families are acknowledged through open contact and the child’s welfare is paramount (Adoption and Children Act 2002).As an adult, I am no longer considered a child of course, but being an adopted child never ceases; childhood may end, but adoptees continually define themselves by this identity because adoption is a continuous feature of their identity.…Since my adoption, I have been a grateful recipient of a series of legislative rights, that have allowed adoptees to gain more knowledge about their origins, entitling me to information on my original birth certificate, and receiving counselling before accessing that information (Children Act 1975 and Adoption Act 1976).In pursing the knowledge of my origins, I am hoping to create stability for my identity. The All Party Parliamentary Group Inquiry into Creating Stable Adoptive Families (2019) highlights that adoptive stability (and thus welfare) involves the importance of knowing. Having knowledge confirmed may go some way to addressing the loss and pain many adoptees experience, referred to in literature as ‘The Primal Wound’ or various forms of embodied pre-cognitive trauma that is hidden in the body well into adulthood.” 18.Ms L further explains that a practical benefit of a declaration of parentage for her will be her ability to acquire dual citizenship.19.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:i)PJ was explicitly referenced (by name) as the “putative father” in a number of adoption documents generated in 1963/1964;ii)Ms L was introduced to PJ by her biological mother, and explicitly identified by her as her birth father;iii)PJ identified himself as Ms L’s birth father when they first ‘met’ through social media. In their subsequent correspondence, he was able independently to confirm and verify much factual information about the circumstances of Ms L’s conception and adoption which was contained in the adoption file;iv)Ms L has been able to produce in support of her application, extensive conversations on social media between herself and her PJ;v)As it happens, and most important of all, Ms L and PJ had agreed, before PJ’s death, that they would undergo DNA testing. On his death, at post mortem, and with the agreement of PJ’s family, samples were taken from PJ, and these have demonstrated (as the expert evidence shows) “very strong support” that PJ is indeed Ms L’s birth father.Ms M: the facts20.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:“As I expect many adopted children feel, I longed to have information about my birth identity and as soon as I was an adult, with the support of my adoptive parents, I began looking for my birth parents. I had my birth certificate, with my mother’s name and I was able to obtain my adoption records, … I found my father’s name and his address at the time in these records.”21.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 2010.22.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”.23.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.24.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:“I have never ever felt so loved or accepted in my whole life. It was like I had never left… the more I find out about him, the more I can see where certain elements of my personality come from.”The legal issues discussed25.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:(1)“Subject to the following provisions of this section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.(2)A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the persons named in it for the purposes of that subsection—(a)is domiciled in England and Wales on the date of the application, or(b)has been habitually resident in England and Wales throughout the period of one year ending with that date, or(c)died before that date and either—(i)was at death domiciled in England and Wales, or(ii)had been habitually resident in England and Wales throughout the period of one year ending with the date of death.(3)Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application (…).(4)The excepted cases are where the declaration sought is as to whether or not—a)the applicant is the parent of a named person;b)a named person is the parent of the applicant; orc)a named person is the other parent of a named child of the applicant.(5)Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.(6)Where a court refuses to hear an application under subsection (1) above it may order that the applicant may not apply again for the same declaration without leave of the court.(7)Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.” (Emphasis by underlining added).26.Section 58 contains clear direction to the court, providing as follows:(1)“Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.(2)Any declaration made under this Part shall be binding on Her Majesty and all other persons.(3)A court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.(4)No declaration which may be applied for under this Part may be made otherwise than under this Part by any court”. (Underlining added for emphasis).27.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)).28.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: “(2) The making of an adoption order operates to extinguish— (a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order”.Separately (and located in the ‘Status’ chapter of the ACA 2002) Section 67 (‘Status conferred by adoption’) provides that:(1)“An adopted person is to be treated