A new direction for modern family law?

Sacha Lee considers Re Ms L and Re Ms M (declaration of parentage) [2022] EWFC 38

The world of family law has evolved greatly since its conception. The Children Act 1989 established the court’s primary focus on the best interests of the child, White v White [2000] UKHL 54 famously established a presumption of equality upon divorce, and in 2008, the HFEA came into force, providing ground-breaking and updating law regarding assisted reproduction.

Driving these legal developments are families up and down the UK who need the law to reflect their evolving family relationships and dynamics. It was only in 2015 that the outmoded concepts of ‘contact’ and ‘residence’ orders were scrapped, ushering in a new era of post-separation child arrangements. These changes heralded an end to the traditional model of stay-at-home mothers and working fathers presumed by the court, and reflected more modern family dynamics, which can encompass anything from a more traditional set-up, to stay-at-home fathers with working mothers, to full-time working LGBTQ+ couples and more.

Family law before…

The legislation surrounding adoption has progressed too. Sadly, there remains, in living memory, days where having a child out of wedlock was severely frowned upon. Unmarried women, especially young women, felt strong societal pressure to either seek illegal termination (termination being legalised in 1967) or to give their child up for adoption to avoid the risk of estrangement from their loved ones – or experience the stigma of illegitimacy.

Religious institutions ran 150 mother-and-baby homes in the UK in the post-war years, before the main responsibility for handling adoptions was moved from voluntary organisations to local authorities in 1976.

The Guardian reported: “The Mother and Baby Homes Commission of Investigation detailed the horrific experiences of about 56,000 women and about 57,000 children who were placed or born in homes, mostly run by nuns, between 1922 and 1998.”

In its report, published in January 2021, it discovered an alarming number of deaths of babies in the homes – and documented the cruelty and neglect suffered. Many were forced to take part in work and separated from their babies, who were fostered or adopted (theguardian.com/world/2021/nov/16/irish-government-agrees-800m-package-for-mother-and-baby-home-survivors)

These homes were also found across the UK – and the impact upon the women placed there, as well as on their children, who are now adults themselves, cannot be underestimated. Indeed, in November 2021, the Irish government agreed a compensation package of €800m to thousands of unmarried mothers who were hidden away in church-run mother and baby homes, where they lived, shunned by society, by way of public apology for what they had suffered.

Progress at last?

Legal reform has subsequently introduced the Children Act 1975 and 1989, the Adoption Act 1976, the Adoption Act 2022, the Family Law Act 1986 and the Human Fertilisation and Embryology Act 1990 and 2008 to bring the law up to date. However, there remains a way to go and questions surrounding how to go about it.

In today’s society, although having a child out of wedlock should no longer be a source of shame or forced adoptions, the impact from the previous generation is still keenly felt.

In the recent High Court judgment of Cobb J in the case of Re Ms L and Re Ms M (declaration of parentage) [2022] EWFC 38, the two applicant women were children adopted in the 1960s.

Ms M stated in her evidence: “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.” [10].

In the case of Ms L, Cobb J states, at [12]: “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 [a] practicing Roman Catholic as are all his family and the priest was consulted and he advised against it...’”

In both cases, the women had good relationships with their adoptive families (although Ms M’s had subsequently died). Ms L in particular stated 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." [13].

Both women had long felt a keen sense of longing to understand their birth identity. They each succeeded in tracking down their biological fathers (a very lengthy process – in Ms M’s case, 40 years). In the case of Ms M, sadly her biological father had died. However, for Ms L, her biological father accepted her warmly and she has subsequently become close to his family.

The key issues

The challenge that they presented to the court was unique:

1. Whether an adult person, who had been adopted as a child can subsequently (in both cases, many decades later obtain a declaration of parentage in relation to the identity of their biological father;
2. Whether, in each case, on the facts, such a declaration is appropriate;
3. And (following on from the above) whether rectification of the applicants’ original birth certificate (so as to add the name of a biological father) is possible, and compatible with adoption legislation.

The meaning behind the case

Ms L, in particular, poignantly set out what it would mean to her to be able to have her biological father recognised in law, while not taking away anything from her adoptive parents in her statement. This is reproduced in Cobb J’s judgment at [17] and [18]:

“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.”

At [18], Ms L further explained that a practical benefit of a declaration of parentage for her will be her ability to acquire dual citizenship.

Ms M echoed this emotion in her statement, at [23]:

“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 judge’s considerations

Cobb J reiterated the law relating to declarations of parentage, namely the statutory basis for the grant of a declaration as to parentage is to be found in s55A of the FLA 1986 – and, provided that the court as jurisdiction, 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 [25]. If the court makes such a declaration (which it will unless to do so would manifestly be contrary to public policy), the prescribed officer of the court shall notify the Registrar General [26].

He also re-stated s67 of the Adoption and Children Act 2002 as described by Swinton Thomas LJ in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 at 245: “Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child” [29].

 Cobb J considered in detail the previous decision of MacDonald J in H v R & An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74 (Re H No.1). In Re H No. 1, MacDonald J declared himself (at §5), for the reasons he went on to discuss, to be: “...satisfied that the court does have jurisdiction in an appropriate case, pursuant to s55A(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 Part 1 of the Adoption and Children Act 2002.”

Noting MacDonald J has based his decision largely on the distinction between parentage as a matter of law and parentage as a matter of fact at [33], this judgment was essential to Cobb J’s decision in this case.

MacDonald J, in Re H No.1 stated (at §45),  s55A(1) of the Family Law Act 1986 deals with the identity of a child’s parent as a matter of fact – and at §46, s65 of the Adoption and Children Act 2002 deals with the identity of a child’s parent or parents as a matter of law (ie once a person is made the subject of an adoption order, their birth parents are no longer that person’s parents in law).

The judge’s conclusion

Using the idea of fact versus law, Cobb J concluded that an adult person, who had been adopted as a child, can obtain a declaration of parentage in relation to the identity of their biological parent.

Although there is a certain neatness by separating the two ideas, Cobb J noted at [48], how,in Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, at [32], Baroness Hale of Richmond observed: “To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person's family, but it does not necessarily tell us much about the importance of that person to the child's welfare.”  

Although adults, both Ms M and Ms L have been subject to adoption orders and, although they love their adoptive families dearly and do not wish to disrupt or set aside their adoptions, also long to understand their biological parentage. It seems inconsistent with modern law and the wide variety of options available for those wishing to have children (surrogacy, adoption, sperm donors, egg donors etc) that the concept of parents in law and parents in fact maybe cannot sit alongside each other harmoniously.

Cobb J noted that for Ms M and Ms L 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” [47].

Cobb J reiterated MacDonald J’s observation at §59: “the legal status of an individual in society should be spelled out accurately and in clear terms and recorded in properly maintained records” [38].

He also took note of Mr Murray’s (instructed for the Attorney General as Advocate to the Court) submission: “while it is settled law that, both domestically and in Strasbourg, an adoption order will act to terminate the birth parents’ article 8 ECHR rights it not established that the child’s rights are similarly curtailed” [40].

Accordingly, Cobb J confirmed such a declaration was appropriate in these two cases and rectification of the applicants’ original birth certificates was compatible with adoption legislation, without negating or otherwise undermining the validity or integrity of the adoption certificates [51].

Conclusion

This judgment is a landmark confirmation persons who have been adopted may also have their birth parents formally recognised – and marks exciting progress in the Family Court. In 2022, modern society is no longer necessarily represented by two, married, heterosexual parents. There are families comprising heterosexual separated parents who have subsequently remarried, homosexual couples who have achieved their dreams of parenthood through adoption, a single parent who used a sperm donor, unmarried couples who adopted children… the options are incredibly wide.

The High Court’s confirmation that parentage, as a matter of fact, and parentage as a matter of law, can peacefully co-exist gives crucial recognition to the variety of ways parenthood can occur nowadays, while providing the children essential validation to their need to understand their identity.

Sacha Lee is an assistant solicitor in the children team with Vardags: vardags.com/services/children-and-family