Please note this PD comes into force 8th April 2024.

This Practice Direction supplements Part 8 FPR (Procedure for Miscellaneous Applications)

Introduction

1.         Section 55A(1) of the Family Law Act 1986 provides that, subject to the provisions of that section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person named in the application.

2.         In H v R and An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74, it was determined that the court has jurisdiction pursuant to section 55A(1) of the Family Law Act 1986, in an appropriate case, 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.

3.         This Practice Direction sets out the procedure to be followed where a birth parent makes an application pursuant to s.55A(1) for a declaration of parentage in respect of a child following the lawful adoption of that child.

4.         For the avoidance of doubt, this Practice Direction applies only to applications by a birth parent pursuant to s.55A(1) for a declaration of parentage in respect of a child following the lawful adoption of that child.

Allocation

5.         On issue, an application by a birth parent pursuant to s.55A(1) for a declaration of parentage in respect of a child under the age of 18 following the lawful adoption of that child should, in the first instance, be allocated to be heard by a judge of High Court level.^[1]

Notice and Respondents

Adopted child under 18

6.         Where a birth parent makes an application pursuant to s.55A(1) for a declaration of parentage in respect of a child under the age of 18 following the lawful adoption of that child, in the first instance the placing authority is the appropriate lead respondent to the application.

7.         Pursuant to FPR 2010 r. 8.20(1), the adoptive parents will be automatic respondents to any application made under s.55A of the Family Law Act 1986 in respect of an adopted child under the age of 18.  The adoptive parents of the subject child should be served with the application by the court and informed that the placing authority will be the lead respondent.

8.         The identity and the address of the respondent adoptive parents must not be disclosed by the court or the lead respondent to the applicant birth parent.

Adopted person over 18

9.         Where an application pursuant to s.55A(1) for a declaration of parentage is made in respect of an adopted person over the age of 18, it is the adopted person who should be the respondent to the application and not the placing local authority.

Preliminary Hearing

10.       Section 55A(5) provides that the court may refuse to hear such an application made under s.55A(1) if it considers that the determination of the application would not be in the best interests of the subject child.

11.       Where a birth parent makes an application pursuant to s.55A(1) for a declaration of parentage in respect of a child under the age of 18 following the lawful adoption of that child, the court should ordinarily list the question of whether the determination of that application would not be in the best interests of the child to be dealt with as a preliminary issue.

Additional Matters

12.       A court dealing with an application by a birth parent pursuant to s.55A(1) for a declaration of parentage in respect of a child under the age of 18 following the lawful adoption of that child should bear in mind the following further matters.

13.       Pursuant to FPR r. 8.22(1) there is a mandatory requirement for all names by which a person is known to appear on the declaration of parentage.  Where a declaration of parentage is made in respect of a child who has been made the subject of an adoption order, this means that the child’s adoptive name (placed on his or her birth certificate by virtue of the relevant provisions of Schedule 1 of the Adoption and Children Act 2002) must be placed on the declaration of parentage.

14.       The declaration containing the adopted name of the child must, pursuant to FPR r 8.22(2), be sent to the Registrar General within 21 days beginning with the date the declaration was made for the Registrar General to consider whether re-registration should take place under the provisions of the Births and Deaths Registration Act 1953. Where a declaration has been granted in favour of a birth parent with respect to a child who is the subject of an adoption order, the original birth certificate may be re-registered in the register of live births annotated with the word "adopted" placed on the re-registered certificate.

15.       In circumstances where the Registrar General is required by the 2002 Act to make traceable the connection between any entry in the registers of live-births or other records which have been marked 'Adopted' and any corresponding entry in the Adopted Children Register, following the granting of a declaration of parentage to a birth parent in respect of a child who has been made the subject of an adoption order, the birth parent will be able to discover the name of the adopted person and, in consequence, identifying information about the adopted person by requesting a copy of the Adopted Children Register.

16.       There is a continuing risk of a breach in anonymity remains whilst it continues to be mandatory in all cases under FPR r. 8.22(1) for all names by which a person is known to appear on the declaration of parentage. In the circumstances, the court will wish to give early consideration to case management directions that ameliorate that risk.