A Child (Application for a declaration of non-parentage post adoption), Re [2025] EWFC 109

[2025] EWFC 109Case No PR24P00854
IN THE FAMILY COURT
Date 14 April 2025
Sessions House,
Lancaster Road,
PRESTON
PR1 2PD
Before
HIS HONOUR JUDGE BURROWSSitting as a Judge of the High Court, pursuant to s. 9(1) Senior Courts Act 1981
Between
TTApplicantA MotherRespondentsLANCASHIRE COUNTY COUNCILRespondent
Re A Child (Application for a declarationof non-parentage post adoption)
Ms Nicola Murray (instructed by RRF Solicitors) for ApplicantMrs Sarah Griffin (instructed by Lancashire County Council) for Second RespondentThe Mother was unrepresentedHearing Hearing dates: 9 April 2025
APPROVED JUDGMENT
[1]This was an application by TT The judgment handed down to the parties included their actual names. (not his real initials) for a declaration of non- parentage under s. 55A(1) of the Family Law Act 1986 (FLA). It concerns his strong belief that he is not the father of a little boy, I will simply call “the child”, on whose birth certificate he appears as father.[2]The child’s mother I will simply call “the mother”. TT and the mother were involved in a relationship at the time of the child’s birth and conception. However, after a long period of time, TT now strongly believes he is not the child’s biological father and wants the Court to make a declaration to that effect.[3]I use the expression “strong belief” because there is, in fact, little actual evidence to displace what appeared to TT to be his biological fatherhood of the child through the care proceedings that ended in September 2021. I will go into this belief in a little detail below.[4]Then, in September 2021, the child was made the subject of both a care and a placement order. Subsequently, on 11 April 2022, the child was adopted. That means that the parental responsibility held by TT and mother ended that day. By the operation of the Adoption and Children Act 2002, s. 67(1), the child is now treated as if he was born to the adoptive parents.[5]TT delayed bringing this application until early Summer 2024. There is no real explanation for this delay, although he was in prison between February 2022 and April 2023 as a result of coercive and controlling behaviour and sexual offences against the mother. TT claims that he raised the issue with those representing him during the care proceedings. However, as I will summarise shortly, paternity was not an issue during the care proceedings.[6]This matter came before Her Honour Judge Bancroft, DFJ for Lancashire, sitting as a High Court Judge and she made directions to ensure that the Court was able to progress with this application on the basis of the best evidence from TT but also from the adoptive parents.[7]I have benefitted from a detailed and focused skeleton argument and case summary as well as succinct submissions from Mrs Griffin, for the Agency, and Ms Murray, for TT. Having heard those submissions, I indicated to the parties I was minded to dismiss this application, and I would hand down a written judgment in the next few days. This is that judgment.

BRIEF HISTORY & BACKGROUND

[8]The child was born in early 2021. Mother and TT were in a relationship at that time, and they registered the child’s birth together at Burnley shortly afterwards.[9]The mother already had two older children removed from her care, and special guardianship orders had been made in relation to those children in favour of the maternal grandmother, in 2018.[10]Care proceedings were started in relation to this child two days after his birth, and an interim care order was made. He was placed in foster care.[11]I have read some parts of the care proceedings, and in particular the judgment of Mr Recorder Scott (as he then was) of 9 September 2021.

DOUBTS ABOUT PATERNITY

[12]Although TT says his mother had expressed scepticism about TT being the child’s father, it seems TT did not share her views at that time.[13]Ms McNally, the social worker, was directed to look into social work records from the time of the care proceedings as well as to speak to the parties, including the adopters. She came across recordings of discussions which were relevant to the issue of paternity.[14]On 5 June 2020, TT is recorded as having seen messages to mother from a man who wanted to be in a relationship with her and would support the baby “as his own”. This expressly contradicts any assertion that the man was the father of the child, but, at the same time, tended, in TT’s mind, to confirm that mother had not been faithful to him.[15]On 6 May 2021, TT told the family time worker that his mother does not believe that the child is his, and this has caused tension between TT and his mother. The mother, meanwhile, was saying that the pregnancy had been planned, although it had been a shock to TT because he believed he could not have children. There was also discussion about how there had been a possibility that he had been the father of another child, and that child’s grandparents had requested DNA testing.[16]On 17 May 2021, TT stated that he may have another child. He had asked for DNA testing to establish that, but the child’s legal guardians had refused to allow it.[17]It is not clear to me, but it seems quite probable, that the matters in the two preceding paragraphs concern the same state of affairs.[18]The allocated social worker at the time confirmed that paternity was never raised as an active issue during care proceedings. It was never raised in the assessments carried out. It was not mentioned in Recorder Scott’s detailed and thorough judgment.[19]So, what are the reasons for TT raising the issue of paternity now?[20]In his application, he raises three issues, which he later expands upon in his statement.[21]He is convinced that mother was unfaithful to him at around the time the child was conceived. He says she was in contact with other men at the time of conception, and by that I assume he must mean she was having sexual relations with another man or men at that time. Secondly, he is also convinced that he is either incapable of fathering children, or at least he is less able to father children than at least one other man with whom mother was involved at the time. He makes reference to having only one testicle and how, despite having unprotected sex with other women, none of them have ever become pregnant.[22]Consequently, the evidential basis for TT’s application is one of suspicion and circumstantial factors. If the matter were to proceed, the Court would have to order a DNA test. That would definitively establish TT’s parenthood, or otherwise.

THE LAW

[23]There was no dispute between the parties on the relevant legal principles I have to apply in this case, and they were outlined in Mrs Griffin’s Skeleton argument. I will summarise the law.[24]Section 55A(1) FLA provides: (1) Subject to the following provisions of this section, any person may apply to the High Court or the family courtfor a declaration as to whether or not a person named in the application is or was the parent of another person so named.[22]There was no issue as to whether the Court had jurisdiction to hear the application (as per s. 55A(3)). The adopters are amongst those who are respondents to the application (via the local authority as adoption agency at today’s hearing): see Family Procedure Rules 2010, r 8.20.[23]The Court does have jurisdiction to determine an application for a declaration of parentage under s. 55A(1) even where a lawful adoption order has been made, as here: see H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74, per Mr Justice MacDonald.[24]Furthermore, in the same case,

the Judge considered s. 55A(5), which provides:

“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.”
[25]MacDonald, J was of the view that the Court ought to consider this as a preliminary issue. That is a particularly important power in a case like this where the evidence upon which any declaration could be made on the application is incomplete, or indeed, very tenuous. Here, a DNA test would have to be undertaken if the Court decided the application should proceed.[26]It is important to notice the language used here. The Court does not have to consider whether proceeding with the application is positively in the child’s best interests, but rather whether to proceed with it would not be in the child’s best interest (see P v Q & F & X [2024] EWFC 85 (Mrs Justice Gwynneth Knowles, quoting Re S (a child) (declaration of parentage) [2012] EWCA Civ 1160.[27]Importantly, s. 58 FLA is considered here. This provides: General provisions as to the making and effect of declarations. (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.[28]By the time the considerations in s. 58 are reached, there must be more profound reasons why the declaration should not be made.

RELEVANT CONSIDERATIONS

[29]As MacDonald, J put it in MS v RS (Paternity) [2020] 2 FLR 689: [45] In considering whether it can be said that to hear the application is not in the children’s best interests (and further highlighting why facts justifying such a conclusion will generally, but not always be radical in nature) the right of the child to know, and the importance of the child knowing his or her paternity is a factor that must also be weighed in the balance…[30]It is very important for a child to understand his identity. Children have a right to understand their identity. And knowing who his father is, or is not, is likely to be an important feature of a child’s appreciation of his identity.[31]In the H case, for instance, there was actual DNA evidence that the applicant was the father of the child, and he was seeking for that fact to be declared. When considering the child’s best interests, particularly when it concerns his identity in later life, the fact of that evidence is particularly important.[32]One other matter that was important in the H case was the integrity of the adoption process. Under FPR 2010, r.8.22: (1) If the applicant or the person whose parentage or parenthood is in issue, is known by a name other than that which appears in that person’s birth certificate, that other name must also be stated in any order and declaration of parentage…”[33]In this case, that would mean the child’s new, post adoption name would have to be stated in any declaration this Court makes. That would throw into doubt the integrity of the post-adoption process, whereby this child has become a member of a new family in which he is settled. For his “new” name to be used would risk TT and the mother discovering who and where he is. Whilst it is not suggested that TT or the mother would seek the child out, it would clearly be a huge breach of the privacy of both the child and his adoptive parents. Indeed, in H, it was this issue that decided MacDonald, J not to make the declaration even though he had decided it was in the child’s best interests for the application to be heard.

COMPETING ARGUMENTS

[34]TT is clear that the child has a right to know who his father is, or, rather, who he is not, and he has a right to know it now. Otherwise, he will grow up receiving regular correspondence from TT (at birthdays) and not realise that TT is not his father. It was submitted that would not be in his best interests.[35]On the other hand, the Agency argued that there is no good reason for the application to proceed. It will disrupt the adoptive placement, potentially subverting it by revealing who and where the child is. The agency pointed out that although in H it was suggested that it was possible for agreements to be made whereby the provisions of r 8.22 could be circumvented, with the child’s true identity not being revealed to TT or the mother, whether that is in fact possible, or permissible is a moot point.[36]Furthermore, as and when the child seeks the truth of his paternity, he will be assisted and helped through the potentially difficult process at that stage. There is no reason to raise the issue now, while the child is 4.

DISCUSSION & DECISION

[37]I have to decide whether it is not in the child’s best interests for the application to proceed. There is a subtle difference in the language used here in comparison with a situation in which I have to decide whether it is in the child’s best interests for the application to proceed. I interpret the requirement in the case to be less onerous for the applicant; namely, not whether it is positively good for the child for it to proceed, but rather whether it would be positively bad for the child for it to proceed?[38]It seems to me that I have to consider all the relevant circumstances when reaching that evaluation.[39]I have to weigh up the benefits for the child to know who his father is, or is not. That is important for his sense of identity. Having considered the matter, it seems to me that is the only benefit for this child for the proceedings to continue. TT plays no active role in his life, apart from letterbox contact. TT no longer has parental responsibility for him, that having been extinguished by the adoption order.[40]On the other hand, for the application to proceed would carry with it a risk of disruption to the child’s life, not least because there would have to be a swab test taken from him.[41]In addition, and frankly much more seriously, there is risk that the declaration that would follow would have to the integrity of the adoption process. It is a very small risk, perhaps, but the consequences should it crystallise would be disastrous for the child.[42]Also weighing very heavily on my mind in this evaluation is the weakness of the evidence upon which the application is based. There is no real evidence that TT is not the child’s biological father. In H there was powerful evidence that the applicant was the biological father, and MacDonald, J considered that to be a strong factor in deciding that the application should proceed. Here, although I have recognised that the child’s sense of identity is a powerful factor in favour of the application proceedings, the basis for the application is weak. The reason TT considers that he may not be the father is a combination of jealousy and mistrust of the mother on the one hand, and his own sense of reproductive inadequacy on the other.[43]The mother also expresses the belief that the making of this application is just another example of TT trying to exercise control over her, and perhaps the child, which is part of the same impulse that led TT to be imprisoned for coercive and controlling behaviour.[44]When balancing all these factors, I have decided that it is not in the child’s best interests for this application to proceed.[45]I would add in relation to the adoptive parents, whilst not before me at the hearing, their voice was heard through the agency. They are now aware of the claim TT makes about paternity. They will no doubt be able to guide the child through this issue as and when it arises. It may be that when he is older, the child will want to know about this subject. Then he will be supported by his parents and professional adoption services who can guide him through what may be an emotionally challenging experience. In other words, TT’s parentage may become an issue for the child one day. When it does, he can be assisted with the implications for his own sense of identity. However, that time has not yet arrived. If and when it does arrive, it will be the child that is in control, and no one else.[46]For all these reasons, the application is dismissed.

Cited in 1 later judgment