A judge has denied a birth father the right to be named on his daughter’s birth certificate following her adoption, in a case which included a direct challenge to the adoption order by the girl’s natural father.

The court held that such a move would be manifestly contrary to public policy, despite the High Court having the jurisdiction to grant a birth parent a declaration of parentage in respect of a child following the lawful adoption of that child, and the adoptive parents in the case supporting the application.

In an extraordinary move, the Attorney General — who under today’s Conservative government essentially engages in legal matters to protect the government’s interests — is an intervenor in this case.

The judgment itself appears to be doubling down on current adoption policy to shut down what the courts and the government may now fear is an upswing in legal challenges to adoption orders by natural parents.

But why protect public policy around adoption in England and Wales if it is outdated and harmful?

Britain is one of only a small number of countries implementing non consensual adoptions, which allow the state to remove children from parents without their consent. It also practices a narrow and closed form of adoption, despite legislation which appears to promote more open policies, creating an apartheid between natural families and adoptive carers. All of these practices embedded within our current public policy on adoption, have been shown to be harmful or non-evidence based in robust and high quality research.

Additionally, adopters’ wishes and feelings are given more weight and prioritised over the child’s and his or her natural family during the court process and beyond, dispensing altogether with basic child welfare principles and the mandate, set in law, to place children’s best interests at the heart of every decision.

Unlike several countries that enable open adoptions promoting contact between natural parents and their children after adoption, and acknowledging that such contact is important and beneficial to children, and in some cases even using carers to work as a bridge between children and their natural parents to assist with reunification, Britain’s public policy by comparison is closed, rigid, and to our mind, criminally and civilly negligent.

Lexis Nexis produced two summaries of this case, one which was published yesterday and another, which is more focused, published today. We are adding extracts from the second summary, by barrister Poonam Bhari, below:

Family analysis: In H v R and another (Attorney General for England and Wales intervening), the court declined to make a declaration of parentage in favour of a birth parent in relation to an adopted child, on the basis that to do so would be manifestly contrary to public policy for the purposes of section 58(1) of the Family Law Act 1986 (FLA 1986). The court also made it clear that even if a declaration of parentage had been made, it would not have conferred parental responsibility, or any legal rights, nor would it have meant that the applicant could resume a role in the child’s life. Poonam Bhari, barrister at 3PB Chambers, looks at the issues.

H v R and another (Attorney General for England and Wales intervening) [2021] EWHC 1943 (Fam), [2021] All ER (D) 67 (Jul)

What are the practical implications of this case?

On 29 September 2020, Mr Justice MacDonald, handed down his first judgment in this case (H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74, [2020] All ER (D) 105 (Nov)), having decided that the High Court has jurisdiction to grant a birth parent a declaration of parentage, where there has been a lawful adoption of that child (per Part 1 of the Adoption and Children Act 2002 (ACA 2002)), and identified that when Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 8 was drafted, it may not have been appreciated that it is open to a birth parent to apply for a declaration of parentage under FLA 1986, s 55A(1).

FPR 2010, SI 2010/2955, r 8.22 states as follows:

(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.

(2) A court officer must send a copy of a declaration of parentage and the application to the Registrar General within 21 days beginning with the date on which the declaration was made

MacDonald J identified a lacuna, it not being clear whether the court has the power to disapply FPR 2010, SI 2010/2955, r 8.22(1), and directed that a copy of his first judgment be disclosed to the Family Procedure Rule Committee.

The primary issue for the court in respect of the second judgment was one of consideration of the merits of the application and public policy arguments (FLA 1986, s 58(1)).

What was the background?

This case should be read together with the first judgment of MacDonald J (H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74, [2020] All ER (D) 105 (Nov)). A DNA test dated 16 November 2015 confirmed that the applicant was the birth father of an adopted child. The child became the subject of care proceedings under Part IV of the Children Act 1989 in 2015. The applicant was made a party to those proceedings. On 6 April 2016 the child was made subject to a final care order and a placement order.

No orders were made during the care proceedings or subsequently directing the local authority to cause the child’s birth certificate to be amended to record the applicant as the child’s father, whether by a declaration of parentage under FLA 1986, s 55A(1) or otherwise.

The applicant sought permission to appeal the placement order, which was refused on 26 July 2016. The child was placed for adoption and an application for an adoption order was made by the child’s then prospective adopters.

The applicant applied for permission to oppose the making of the adoption order. That application was refused on 28 February 2017. The child was made subject to an adoption order under ACA 2002, s 46 on 12 April 2017. On 27 June 2019, out of time, the applicant applied for permission to appeal the making of the adoption order, which was refused on 17 July 2019.

On 2 March 2020, the applicant issued an application for a declaration of parentage, however the C63 application form omitted to mention that the child had been made the subject of an adoption order. The applicant saw his application as a route to resuming his relationship with the child, starting with indirect contact on a monthly basis, leading to fortnightly indirect contact. The application was opposed by the adoption agency. The child’s adoptive parents did not wish to actively participate in the proceedings.

On 29 September 2020, MacDonald J decided that the High Court has jurisdiction under FLA 1986, s 55A(1) to grant a birth parent in the position of the applicant a declaration of parentage following the lawful adoption of that child under ACA 2002, Pt 1, but having dealt with the preliminary issue of jurisdiction, the court identified a number of issues (para [10(i)–(viii)]), directed the adoption agency to file further evidence (para [11(i)–(v)]) and invited the Attorney General to intervene in the proceedings.

What did the court decide?

The court considered the written and oral submissions on behalf of the applicant, the second respondent and the intervenor, ie:.

1. •on behalf of the Attorney General it was submitted that in the event FPR 2010, SI 2010/2955, r 8.22(1) cannot be disapplied, the court can look at invoking the public policy exception at FLA 1986, s 58(1), highlighting the ‘cardinal importance’ that adoptive placements are protected from situations where the confidentiality of such placements can be compromised (paras [19], [21]–[23]) and that the decisions in Re F (Paternity Registration) [2011] EWCA Civ 1765, [2013] 2 FLR 1036 and AS v CS [2021] EWFC 34, [2021] All ER (D) 48 (Apr) enable the court to disapply the rule (para [20])
2. •it is for Parliament and not the courts to formulate public policy (para [24]) and the relevant public policy considerations in this case concerned the practice of adoption in this jurisdiction, which the court analysed (paras [25]–[30])
3. •the public policy developments of adoption law relate to the creation of a permanent family unit, the confidentiality of such a placement and the importance of a child being able to choose to obtain information as to their origins, with the requirement for advice, sign posting and counselling for an adopted adult before being able to access adoption records/original birth certificate (ACA 2002, s 78(3))
4. •FPR 2010, SI 2010/2955, r 8.22(1) must be interpreted in light of the overriding objective (FPR 2010, SI 2010/2955, r 1.1), in particular where the welfare interests of a child and justice are not served by applying a particular rule it must be open to the court not to apply it (para [63]), and
5. •that the court had declined to make a declaration of parentage this would not prevent the child from being able to understand who the birth father is, as recognised by Mr Justice Cobb in Re M and N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, [2018] 1 FLR 293 (para [72])

In this case the court did not need to exercise its discretion to disapply FPR 2010, SI 2010/2955, r 8.22(1), having declined to make a declaration of parentage on the grounds that to do so would be manifestly contrary to public policy for the purposes of FLA 1986, s 58(1) (para [73]).

The court confirmed the firmly established elements of public policy recognised by the law as it relates to the practice of adoption (para [58 (i)–(v)]).

You can read the judgment in full on BAILII.