8 June 2022
The recent family law case of Ms L; Ms M (Declaration of Parentage)  EWFC 38 determined fundamental questions about ‘who is my parent?’. The legal proceedings concerned applications by two women who had been adopted as babies and whether decades later they could obtain declarations of parentage to resolve their family ancestry, confirm the identities of their biological fathers and rectify their original birth certificates to add the name of their birth father. In making these applications, the two women gave compelling evidence about the importance of obtaining declarations of parentage notwithstanding being adopted to resolve their personal identities and lineage, aid their long-term psychological welfare and acquire dual citizenship.
Ms L’s application
Ms L was placed for adoption at 6 weeks old in 1964. Her birth parents were unmarried teenagers and a note in her adoption records read “[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…”. Adoption Society paperwork setting out the facts of the case contained a question “Why is the child offered for adoption?” and Ms L’s birth mother answered “My parents think I’m too young to keep a baby” and “I think adoption is best for the baby”.
Ms L first made contact with her birth mother in the mid-1980s and forged a reasonable relationship with her and her maternal birth family for a period of time before her birth mother ceased contact. Her birth mother passed away in 2018. In 2009, her birth mother gave Ms L details of her birth father and she made contact with him. He responded warmly and they established a mutual acceptance of their probable biological connection. He died unexpectedly in 2020. Before his death, he and Ms L had agreed they would undergo DNA testing. On his death and with the agreement of his family, post mortem samples were taken which gave very strong evidence that he was Ms L’s birth father.
Ms L gave evidence explaining the importance of obtaining a declaration of parentage to confirm the identity of her biological father saying “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”.
Ms L went on to say “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…In pursuing 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”. Moreover, Ms L explained that a practical benefit of a declaration of parentage for her would be the ability to acquire dual citizenship.
Ms M’s application
Ms M was born in 1964 to an unmarried young woman from an aristocratic family in her early 20s. The circumstances of the pregnancy, birth and adoption was concealed from the birth mother’s family. Ms M made limited contact with her birth mother over 30 years ago and they stayed in touch through correspondence and met again in 2021.
Ms M’s birth mother refused to disclose the identity of her birth father, simply saying that “he was sweet and charming”. All the other members of her maternal birth family rejected her saying they wanted nothing to do with her after she made contact with them in recent years. Ms M gave evidence saying she spent much of the last 40 years trying to find her birth father and “As I expect many adopted children feel, I longed to have information about my birth identity and 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”.
Ms M traced the name of her birth father in her adoption records, although there were various different versions of his forename and surname, which were very common names in the European country of his origin. Ms M employed the services of a private investigator without success. She then experienced a breakthrough when she undertook a direct-to-consumer DNA test and submitted her results to a number of genealogy websites. In 2020, she received notification of a match who was later identified as a half-brother who named his father on his family tree with a version of Ms M’s birth father’s name. After more online searches, Ms M found other wider paternal family members who were identified as cousins and siblings who quickly accepted Ms M as a member of their family.
Unfortunately, Ms M was devastated to find out that the man she believed to be her birth father had died in 2010. She managed to obtain her birth and death certificates and discovered that he had married a woman in 1965 three months after her birth. She was able to obtain his marriage certificate which recorded his address at the time which matched the address of her birth father on her adoption records. She also learned that he had 11 children in total from a number of different relationships. He had been a brilliant academic, fluent in multiple languages, a womaniser, an alcoholic and a gambler. He was also remembered as ‘a charming man with a big heart’.
In October 2021 for unconnected reasons, a bone from his body was exhumed and Ms M managed to obtain permission from the relevant European authorities to test her DNA against the bone. The DNA test confirmed with a very high degree of probability that he was Ms M’s birth father. Ms M gave evidence that she wished to obtain the citizenship of her birth father’s European country and she was making plans to relocate to the country of her birth father and his family. She described her feelings on finding her paternal birth family saying “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”.
Declaration of Parentage
In granting declarations of parentage in respect of both women, the Judge stated “I have no doubt that for both of these applicants, it is a matter of very considerable personal importance that they are able to achieve legal recognition of their birth parentage. Such a declaration would represent both an acknowledgment of their true identity, and a degree of stability in that identity; I accept the case for Ms L and Ms M that such an order would permit and encourage the nurturing of family relationships with their newly found paternal families and would go some way – as Ms L explained – to “…remedy the ‘broken connection’ of being an adopted child without a named birth father”.
In granting declarations of parentage, the Judge navigated complex legal issues around parentage as a matter of law and parentage as a matter of fact. In doing so, he recognised previous legal findings in case law that the birth parent of the adopted child remains as a matter of fact the child’s biological, or natural, parent but is not the child’s legal parent by reason of the grant of an adoption order. As such, the Judge ruled that the term “parent” for the purposes of an application for a declaration of parentage pursuant to section 55A(1) of the Family Law Act 1986 refers to someone who is a parent of the child as a matter of fact. This was distinguished from the separate statutory framework governing adoption (the Adoption and Children Act 2002) which dealt with the identity of the child’s parents as a matter of law. The Judge ruled that the two statutory frameworks did not come into conflict in making declarations of parentage as to Ms L and Ms M’s birth fathers despite them having been adopted as infants.
The Judge also drew on previous case law rulings in granting declarations of parentage which stated “Issues of status, such as parentage, can be expected to be approached with some formality in circumstances where they concern not only the individual but also the public generally which has an interest in the status of an individual being spelled out accurately and in clear terms and recorded in properly maintained records”.
Specialist Family Law Advice
This legal ruling highlights the importance of resolving questions about an individual’s parentage and the life-long significance that this has emotionally, psychologically, socially and legally. The grant of declarations of parentage to legally recognise the applicant women’s birth fathers and rectify their original birth certificates to add the name of their biological or birth father despite their adoption as babies resolved fundamental aspects of their identity. In doing so it: answered long-held questions about their birth fathers, opened the door to obtaining dual citizenship, clarified family ancestry and lineage for Ms L and Ms M and their children and grandchildren, met the public interest in accurately recording their status in properly maintained records and helped them reconnect with their birth families.
Need an expert family lawyer to answer questions or resolve issues about legal parentage? For further information and assistance please contact Louisa Ghevaert by email email@example.com or by telephone +44 (0)20 7965 8399.