Declaration of Parentage Applications: The Significance of Legal and Biological Parenthood

14 March 2023

The Family Court has heard a number of applications for a Declaration of Parentage recently. In November 2022, it determined an application by Amy Boudewijn for a Declaration that the late Errol Washington Johnson was her biological father. In February 2022, the Family Court also heard an application for a Declaration of Parentage where the status of legal parenthood was in doubt due to administrative errors made by clinic staff during fertility treatment. These cases are are in addition to the case of In X v Y [2022] EWFC 77, in which I successfully obtained a Declaration of Parentage for a woman following a 35-year search for her biological father. As such, all of these cases bring into focus the significance of biological and legal parenthood to resolve issues relating to an individual’s identity, their biological and legal parentage and their birth records.

Application for a Declaration of Parentage by Amy Boudewijn

Amy sought a Declaration from the English Family Court that Errol Washington Johnson (“Errol”), who passed away on 25 July 2002, was her biological father. In doing so, she wished to amend her birth certificate pursuant to the Births and Death Registration Act 1953 to record Errol as her father, notwithstanding her subsequent adoption.

Amy was born in October 1979. Her mother, Denise Peever (“Denise”), was aged 18 years at the time of her birth. Amy’s biological father was Errol, a marine engineer mechanic in the Royal Navy who was born in Jamaica. Given Denise’s young age, she was not able to care for Amy. As a result, Amy was adopted when she was seven months old by Pieter and Bridget Boudewijn.

In 1999, Errol made enquiries of Hampshire Social Services in the hope of contacting Amy. He had not done so previously as his wife had been opposed to the idea. In October 1999, Hampshire Social Services notified Errol that the had contacted Amy’s adoptive parents, who had discussed matters with Amy, and were agreeable to indirect letterbox contact. Errol and Amy subsequently met in person and thereafter spent much time together, including a holiday to Florida, until he passed away on 25 July 2002.

In seeking an application for a Declaration of Parentage, Amy submitted evidence to the court showing her relationship with Errol and the loving father-daughter bond that they had forged. In addition, Errol included Amy in his Will. Amy also made submissions to the court that obtaining a Declaration that Errol was her biological father would complete the paperwork for her Jamaican heritage and ancestry. She sought Jamaican citizenship by descent and to achieve this she needed Errol’s name to be recorded on her birth certificate. Furthermore, she submitted that it would have been Errol’s wish to have been formally recognised as her father. Moreover, her application was supported by the representative of Errol’s estate and her adoptive mother, who were both legal parties to the proceedings.

The presiding Judge, Mr Justice Mostyn, granted the Declaration that Errol was Amy’s biological father. He determined that having Errol’s name on her birth certificate would be important for her cultural and racial identity as well as for her two children. He was satisfied on the balance of probabilities that Errol was Amy’s biological father having taken into account DNA test results from Errol’s two biological children, Ashley and Darren Lee Johnson, which confirmed that Amy was their biological half-sibling. Mr Justice Mostyn went on to make clear that had this DNA evidence not been available, then:

“…the remaining evidence adduced by Amy satisfies me on the balance of probabilities that Errol was Amy’s father. I say this to  make clear for the benefit of any future case that there is no requirement that scientific testing must be undertaken on an application for a declaration of parentage”.

Y v Z [2022]

The case of Y v Z [2022]  EWFC 157 (Fam), concerned a child (X) who was born following IVF fertility treatment at CARE Fertility Clinic. Due to administrative errors, the legal parentage of the father was in doubt. Specifically, neither the father nor the mother had completed the HFEA forms PP or WP, being the prescribed forms that secure the legal status relating to a child born through fertility treatment. Instead, there was an internal clinic consent (IC) form that had been signed by them both. However, unlike in other cases, the IC form did not contain a parenthood notice. Accordingly, the English Family Court was tasked with determining whether the written documents that were signed met the requirements for the parenthood conditions under the Human Fertilisation and Embryology Act 2008.

X was conceived through IVF treatment using donor sperm. The mother and father had both been married before and X was the only child conceived during their relationship. The mother had previously undergone treatment at the clinic to conceive her older child. The information provided by the mother to the Clinic and noted on their system was that the father was still married, albeit separated. Consequently, the marital status was entered on the Clinic system as “married” which the Clinic accepted during the proceedings was an error. Thereafter, both parents attended the clinic for a consultation and it was agreed the father would undergo a surgical procedure to try to retrieve sperm for analysis. Both parents completed various forms including a ‘Contract for Freezing and Storage” which stated that “We are progressing to treatment as a couple or as co-parents”. They also completed separate WT Forms recording their consent to treatment and storage and Forms CD entitled ‘Your consent to disclosing identifying information’ as well as a ‘Welfare of the child: patient history form’. The father also signed a GS form entitled ‘Your consent to the storage of your eggs or sperm’.

As the father’s own sperm sample was not suitable for treatment or freezing, they proceeded with treatment using donor sperm. Both parents attended a telephone counselling appointment to discuss the implications of using donor sperm. This included discussions about legal parenthood and both parents agreed the father being treated as the legal father of any resulting child born. The Clinic also sent out an HFEA PBR form entitled ‘Your consent to being registered as the legal parent in the event of your death’, which the father completed and signed. The Clinic accepted within the legal proceedings that this form should not have been sent to the father as the parents were not married and that he should instead have been sent form PP.

Following a telephone call by the mother to the Clinic about the treatment timetable, an electronic registration form was sent to both parents. Both parents completed the form recording that they were “not married”. Their marital status was updated on the Clinic electronic system automatically overnight so the Clinic electronic system  recorded them as “not married”. Furthermore, they both completed a travel questionnaire in which the both ticked “yes” to the question “we are being seen in clinic (or donating embryos) as a couple or as co-parents”.

The parents then proceeded to sign the ‘Consent to Treatment’ form (IC) which required them to confirm:

“a) I am progressing treatment as an individual

b) We are progressing to treatment as a couple or co-parents”.

Unfortunately, the clinic’s internal checks did not identify the errors nor the fact that as the parents were not married they should have completed forms PP and WP in order for the male partner to be the legal parent of the resulting child. Egg retrieval and embryo transfer followed shortly thereafter and X was born in October 2021. The clinic did not discover that forms PP and WP had not been completed until September 2021 during a routine audit of legal parentage forms. The clinic notified the parents the same month.

The presiding judge, Mrs Justice Theis, proceeded to grant a Declaration of Parentage in respect of the male partner stating:

“I agree that the IC Form signed by both parents on 5 and 6 January 2021 contains the joint agreement of the parties that they are ‘co-parents’. The cases make clear that the notice under s37 does not have to be in any particular form providing it is in writing and conveys the necessary consent as required in s.37. in my judgment the IC form in this case does that.

The content of the IC form is entirely consistent with all the other information available to the court, including the PBR form and the record of the counselling….It makes no sense to sign a form agreeing to be treated as the legal parent of a child born after your death if you do not intend to be the child’s parent during your life. The PBR form specifically sets out who should complete the form which includes stating ‘your wish to be registered as the legal parents to any child born if you die before embryos (that were created before your death) are transferred to your partner’. The counselling notes are clear in that they tick all the boxes that relate to the implications post the HFEA 2008, recording that those issues were discussed. This supports the IC Form signed subsequently, where the parents tick the part that records them progressing to treatment as a couple or as co-parents”.

Family Law Advice and Legal Representation

Once again, these cases makes clear that issues associated with identity, biological and legal parentage are significant emotionally, socially and legally for individuals and their family status, relationships and children.

Need a family lawyer or a legal parentage lawyer? Louisa Ghevaert Associates provides a range of specialist legal services to assist with the management of legal parentage disputes, applications for a declaration of parentage and re-registration of birth certificates. If you would like to discuss your situation or you require specialist family law advice and assistance please contact Louisa Ghevaert by email  or by telephone +44 (0)20 7965 8399.

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