“Rebuttal of presumption as to legitimacy and illegitimacy Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable that not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption. (Note 2.640.[1]): Standard of proof……The ‘civil standard’ is required here as explained for example in Re B (Children) (Care Proceedings: Standard of Proof)[2008] 2FLR 141 HL.”
“Where a child’s father and mother were married to …each other at the time of his birth, they shall each have parental responsibility for the child.”
“The meaning of ‘parent’ (10(4))-This term is not defined in the Act. A child’s natural mother and father…are his parents unless he has been adopted.”
“There must be exceptional circumstances to justify not giving a parent notice of their child’s existence. This does not mean that there has to be one “magnetic factor” and a combination of unexceptional circumstances can satisfy the test; The court must conduct a holistic exercise in considering all the circumstances. This includes an assessment of what the paternal family could offer, even if this is limited. The court is further reminded that no provisions of statute, regulations or rules impose any absolute duty on the local authority to inform or consult members of a child’s extended family about that child’s existence or plans to place that child for adoption, although the ethos of the CA 1989 supports wider family involvement save where it is inconsistent with the child’s welfare: Re H (care and adoption: assessment of wider family)[2019] EWFC 10 .” 52. The Mother denies that Mr L is the children’s biological father. Whilst he is her husband, he is not named on the children’s birth certificates. Whilst there is a presumption in law that a husband is the father of any child born to a mother to whom they are married, on the facts of this case the Local Authority will invite the court to rebut that. The Local Authority considers that Mr L does not have parental responsibility by virtue of the marriage when paternity is denied (s2(1) Children Act 53. 1989). Whilst the term ‘parent’ is not defined within theChildren Act 1989 , the commentary at s10(4) assists in terms of referring to a parent as a natural mother or father. On the mother’s case it cannot be said that Mr L is so.” 54. Factual Background 12. The facts are not in issue and having heard oral evidence from the mother , who was agitated and suitably upset during her testimony (which I heard on affirmation), I entirely accept her account. She comes from a Catholic community. She told me that if she knew these twins were the product of her husband then she would without hesitation have ensured that they were brought up within her family. The fact that they are not fills her with dread as to what would happen if their presence is known. She feels , with justifiable trepidation, that her marriage would be over and her four children’s family lives would be decimated beyond repair. I take the following agreed summary from the skeleton submissions (filed on behalf of the twins) with slight underlined alteration and anonymisation from me: i. “The first respondent mother (‘M’) is EW, of Polish nationality. The factual background is taken from M’s account to the social worker, hospital staff and the Guardian, and from her statement filed in these proceedings , as well as from the social worker’s statement in support of this application. ii. M is now 37 years old. She is married to XY (‘H’) aged 46 years. Both M and H are of white Polish descent. They have 4 children together: A ( a boy aged 19), B ( a boy aged 16) , C ( a boy aged 9), and D ( a girl aged 7). F and the 4 older children reside in Poland, together with the paternal grandparents (“PGPs”). The paternal grandfather is aged 74 and the paternal grandmother is aged 68. iii. Due to their difficult financial circumstances and H’s lack of employment, M has lived and worked in the UK from 2017 until July 2020, returning to Poland regularly every 2-3 months to stay with her husband and children. F and the children have also visited M in London. M is currently living in Poland with F, the PGPs, and her four older children. Her current plans to return are unclear and are in any event affected by travel restrictions due to the Covid-19 pandemic. iv. By virtue of the marriage, because of the legal presumption oflegitimacyH is the legal father of the twins and holds PR for them:section 2(1) Children Act 1989 . In her (unsigned and undated) statement, M states (C15-16) that F is not in fact the biological father of the twins, but rather that they were conceived as a result of a “one-night stand” in October 2019, with a man of Asian appearance whom she met in a pub. M reports that she does not know the identity of this man or where he lives, and that she has no means by which to contact him. v. M reports that she only became aware of her pregnancy in March 2020, when she felt the babies’ movements. She was in Poland with her family at the time, but concealed her pregnancy from F and everyone else. She did not receive any antenatal care until very late in the pregnancy. She confided only in her female friend and sometime flatmate in London. She sought a termination on2 June 2020 , by which point it was estimated by ultrasound scan that she was 35 weeks pregnant. The hospital records note that M was very emotional and distressed about the lateness of her pregnancy and about placing the babies for adoption ( C3). The twins were delivered by Caesarean section on the15th June 2020 . vi. Following the birth of the twins, M signed a Section 20 agreement. From the moment of birth onwards, she declined to have any contact with the boys [C4 - 3.6]. M provided the boys with some clothing, but arranged for her friend to deliver these items. Following their discharge from hospital, the twins were placed in foster care, where they remain. One of the foster carers is Polish speaking. vii. M visited the hospital on8 June 2020 , and told professionals that F was the biological father of the twins and discussed adoption [C3 3.2]. M gave birth on the15 June 2020 and was seen beforehand by a duty social worker and a social worker from Adopt London West. M informed both professionals that F was the father of the 55. twins [C3 - 3.4]. She said that she wished for the twins to be adopted without F’s knowledge, stating that he would be upset that she did not have a termination, and that they cannot afford to care for 2 more children. She was also worried that F would think the children were not his [C4 - 3.5]. viii. M denied that there was any domestic abuse in her relationship [C13]. In her statement at paragraph 10, M describes her marriage as loving and stable. She states that there has never been any form of abuse or violence in the relationship, and that F is a very decent and caring man. ix. On19 June 2020 , M for the first time told the SW that she had lied, and that she had in fact had a one-night stand. M’s position was, and is, that if F were to find out about the circumstances surrounding the twins’ conception, this would lead to the breakdown of their marriage and potentially the loss of her relationship with the 4 eldest children. Although F was visiting M in London around the time of conception, M has stated that she has not had sexual intercourse with F for 2 years, due to F’s declining mental and physical health [C13]. M also told professionals that she believed she could not have more children as she had had part of her cervix removed in 2006; she has however given birth to C and D since 2006. x. M has not identified any wider family members or other individuals to be put forward as alternative carers for the twins; she has stated that she does not wish to be connected with them in any way [C7 - 4.4]. She has informed the local authority that she has no siblings, has a poor relationship with her own mother [C12], and that her husband’s parents are elderly with health problems [C16]. xi. The local authority made a Part 19 application for a declaration that it need not notify F of the birth of the twins and that his consent is not required to their adoption. The local authority’s position was that there would be no benefit to the twins if F is notified of their birth, and that the consequences for M’s marriage and her relationship with her other 4 children could be catastrophic. xii. The matter came before the court on29 July 2020 . M did not attend the hearing as she was in Poland at the time, with F. The children were joined as parties, directions were made [B5-B7] and the final hearing was listed. xiii. The boys have been described by the Guardian as being of “white Polish and Asian” heritage [E2], as a result of M’s belief that the biological father is Asian [C15]. xiv. On the6th November 2020 , and pursuant tosection 19 of the Adoption and Children Act 2002 , the Guardian remotely witnessed M’s signature to forms providing her consent to the placement of both boys with prospective adopters chosen by the local authority, in their role as the adoption agency. The signed forms are in English and M was offered an interpreter but declined. The Guardian therefore read over the forms to M and ensured that she understood the contents. M’s spoken English is good. xv. There are additional procedural requirements when any form of consent is executed outside the UK. Rule 14(10)(6) of theFamily Procedure Rules 2010 provides that any form of consent outside the UK must be witnessed by a person authorised to administer oaths in that jurisdiction, or by a notary public, or by a British 64. Consular officer….”
“M’s father is deceased. She has no siblings and limited contact with her own mother, whom she states struggles with alcohol dependency. She has some support from F’s extended family in Poland, however his 69. parents are elderly, and F’s brother is reported to be unlikely to be able to offer care. It is the Guardian’s view that F’s family are more likely to support F’s position than M’s, in the event that he is notified. If F were to reject the twins, the Guardian is concerned that his wider family would be unable or unwilling to support M or the twins. The prospect of a successful and stable placement with F’s extended family is therefore unlikely. The only other possible option would appear to be placement with M’s 19 year old son, who still lives at home with his parents and continues to receive support from them. This option is not realistic and would clearly not provide the same level of safety or security as an adoptive placement.”