Who is my parent?

The desire to know and understand our family roots and genealogy can be seen from the increase in popularity over recent years of DNA tests such as 23andMe, and the BBC TV series “Who Do You Think You Are?”. As of last September, 23andMe reported that nearly 12 million people had taken their at-home ancestry test, and Ancestry.com has surpassed 15 million members in its DNA network.

As highlighted by Sir James Munby in In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602 (Fam) at para 3, it has never been more important to be able to answer the question “Who is my parent?”.

The question raised in the recent case of Re L, Re M (Declaration of parentage) [2022] EWFC 38 was whether an adult (who was adopted as a child) could obtain a declaration of parentage in relation to their biological father, and whether this declaration potentially undermined the previous adoption order. The matter came before Mr Justice Cobb in the Royal Courts of Justice in early 2022.

The case involved two women, Ms L and Ms M. Ms L was born in 1963 to unmarried teenagers; she was placed for adoption at six weeks old and was adopted in 1964. Ms M was born in 1964 to a young woman in an aristocratic family; she was placed for adoption within two months of her birth and adopted the following year. Both women had positive relationships with their adoptive families but wished to find out more about their biological parents. In both cases, their birth mother was named on their original birth certificate, but neither of their birth fathers’ details were recorded.

Ms L: background

Ms L first contacted her birth mother in the mid-1980s and they had a limited relationship for a period of time. However, Ms L’s birth mother subsequently indicated that she would prefer for the contact to cease. Prior to this taking place, Ms L’s birth mother had provided Ms L with details of her birth father. Ms L contacted him, and they established a close relationship. Sadly Ms L’s birth father died in 2020. Before his death, Ms L and her birth father agreed to undergo DNA testing. With the consent of his family, following his death, samples were taken from him, and these demonstrate “very strong support” that he was Ms L’s biological and birth father.

Ms L’s birth father had connections with Italy and had spent considerable time during his life researching his family tree and connecting with the Italian side of his family. Ms L shared with the court that she has identified very strong personal character traits in herself which she shares with members of her birth father’s Italian family and that in her chosen career she has been drawn in many ways to Italy.

Ms M: background

Ms M had some limited contact with her birth mother over 30 years ago. They resumed this contact in writing some five years ago and met again in 2021. They have a sensitive relationship, and as part of the application Ms M requested that her birth mother should not be joined as a respondent to the application, as this would likely bring an end to their already fragile relationship. Cobb J took the view in respect of this issue that he could exercise his discretion and exclude Ms M’s birth mother from the proceedings.

Ms M explained to the court that she had spent much of the last 40 years trying to find her birth father. Her birth mother does not engage with any conversation in respect of her birth father and his identity, and as such she looked in the adoption records and engaged private investigators, amongst a number of other routes. A number of years ago, she also submitted her DNA to a number of genealogy websites searching for matches. In 2020 she was notified that there was a match, who ended up being a half-brother. Sadly, upon making contact, Ms M discovered that her birth father had died in 2010; however, she has been able to build close relationships with his family members.

In October 2021, in circumstances unconnected with Ms M’s application, a bone from the body of her birth father was exhumed. Ms M was able to persuade the authorities in the country in which he was buried to test her DNA against this bone. The DNA test confirmed to a very high probability that the man was indeed her birth father.

Applications made

Both women applied to the court for a declaration of parentage in respect of their birth fathers, requesting that their original birth certificates be amended to add their names alongside the name of their birth mothers. Neither were seeking to disrupt or set aside their adoption (and the court commented that there were neither legal grounds nor factual reasons for doing so in either case) but were rather looking to correct the historical record on their original birth certificates to formally complete their birth history.

The questions which Cobb J considered were as follows:

a) Whether an adult person who has 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.

b) Whether, in each case, on the facts, such a declaration is appropriate.

c) And, following on from the above, whether rectification of the applicants’ original birth certificate (so as to add the name of a biological, or “birth father”) is possible, and compatible with adoption legislation.

In considering the applications, the court heard evidence from both Ms L and Ms M as to why their applications were of real importance to them.

Ms L explains that as an adopted child she is “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”. She describes that “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”.

Ms M explains that “as I expect many adopted children feel, I longed to have information about my birth identity”. She goes on to explain how loved and accepted she felt when she found her birth family (on her paternal side), and how she can see where certain elements of her personality come from the more she finds out about her birth father.

Their evidence was compelling and demonstrates how important it is to have full and complete information as to your identity, and the continuing importance of this even into adulthood. In particular Ms L in her evidence talks of the importance of knowing and creating stability for her identity in pursuing the knowledge of her origins.

In addition to the psychological and emotional benefits of knowing and recognising the identity of their biological father, both women also wish to take citizenship of the country of their birth father. 

Legal issues

A declaration of parentage is where a person applies to the High Court or the Family Court for a declaration as to whether a person named in the application is or was the parent of another person (s55A Family Law Act 1986).

Cobb J describes in his judgment how, on first consideration, his concern was how a declaration of parentage could fit with the provisions of the Adoption and Children Act 2002 (and its predecessor legislation).

The making of an adoption order provides that “an adopted person is to be treated in law as if born as the child of the adopters or adopter” (s67 Adoption and Children Act 2002) and that they are to be treated “as not being the child of any person other than the adopters or adopter” (s67(3)).

At first blush this appears to undermine the applicants’ case that they could obtain a declaration of parental status in respect of someone who in law had ceased to be their parent.

In considering this issue Cobb J relied upon the judgment of MacDonald J in H v R & An adoption agency (Declaration of parentage following adoption) [2020] EWFC 74 and a later ruling in the same case: [2021] EWHC 1943 (Fam). The judge in that case navigated complex legal issues around the term “parent”, deciding that for the purposes of s55A(1) of the Family Law Act 1986 this deals with the identity of a parent as a matter of fact, and contrasted this against the Adoption and Children Act 2002 which deals with the identity of a child’s parents as a matter of law. In particular, Cobb J relied on MacDonald J’s conclusion that it remains possible for a birth parent to establish that they are as a matter of fact the parent of the adopted child, without that factual determination coming into conflict with the status in law of the child and the adoptive parents.

As such Cobb J felt able to grant declarations of parentage in respect of both women and ordered that their birth certificates could be amended to add the name of their birth fathers. He was clear that he was satisfied that, in doing so, there would be no implication on the adoption certificate which had been issued in respect of both women, and that the declaration was being made in order to achieve a legal recognition of their birth parentage.

Commentary

When we are born, we are issued with a birth certificate by the General Registry Office. This records one, or two, legal parents. This birth certificate can be superseded in two scenarios – either when a parental order is made (in surrogacy cases) or where an adoption order is made. In both scenarios, the effect of these orders is that, in law, once the order is made the person ceases to be a child of their birth parents and is to be treated in law as being the child of the adoptive parents/intended parents. The adoption order/parental order effectively supersedes the initial birth certificate as the document which establishes that person’s legal identity.

Cobb J describes in his conclusion how the adoption certificate in this case will “continue to confirm the legal status of parentage”, while the original birth certificates “relate to the factual and biological evidence” of parentage. However, the separation of these two documents does not particularly endorse or support honesty and openness around a child’s origins. It also does not consider a situation in which a birth certificate does not reflect biological or genetic parenthood. For example, in a surrogacy case, the surrogate (and if married, her spouse) may not have any biological link to the child whatsoever but will nevertheless be recognised as the legal parents on the child’s original birth certificate. There may also be situations in which a person has conceived by way of donor conception, where the child’s biological parent is not recorded on the birth certificate at all.

Steps have been taken towards a greater level of openness and honesty in respect of both adoption, surrogacy, and donor conception. In the United Nations Convention on the Rights of the Child (UNCRC), which is an international human rights treaty providing a statement of a child’s rights, Article 8 provides that “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference”.

In respect of adoption, the Adoption Act 1976 gave adoptees the right to access their original birth certificates, and since then there has been a greater acknowledgment of the importance of a child being told that they are adopted and their birth origins. In respect of surrogacy, the Law Commission (in its consultation paper published in June 2019 as part of its project on surrogacy reforms) has suggested that there should be the creation of a national register of surrogacy arrangements, which will record the identity of the intended parents, the identity of the surrogate and information as to any sperm or egg donor involved also. This acknowledges the greater understanding we now have as to the importance of identity on children and adults, and in the case of Re L, Re M, we can clearly see from Ms L and Ms M’s persuasive and powerful evidence the importance of their birth history being properly recorded.

However, the separation of legal and biological parenthood and the limitations of our current birth registration system compromises any such advances. Is it perhaps time for the birth registration system in England & Wales to be updated to enable documents to be issued which properly reflect the reality of a child’s situation as family relationships within society continue to change and develop?

Ms L for example comments how she is 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”.

Other jurisdictions have embraced a three or more legal parent model. In Ontario, for example, up to four people can be recognised as a child’s parent at the time of their birth, and in California, three-parent adoption means that up to three people can be legally recognised as the legal parents of a child.

In Re G (Children) (Residence: Same-sex partner) [2006] UKHL 43 Baroness Hale of Richmond sets out that there are at least three ways in which a person can become a parent – genetic parenthood, gestational parenthood and psychological parenthood – and the crucial role these people may play in an individual child’s life. In the UNICEF Implementation Handbook for the Convention on the Rights of the Child (Hodgkin and Newell, 2007) it is stated that “it is increasingly recognised that children have a remarkable capacity to embrace multiple relationships”.

Ms L and Ms M have both been successful in completing their birth history, with the assistance of the Family Court. However, perhaps this case demonstrates how it is now time for proper consideration to be given to having a new legal document which provides recognition of the diverse range of family forms and “parenthood” relationships which we see in our society in 2022.