This is a guest post by Georgia Fineberg about the case of X v Y [2022] EWFC 77 (07 July 2022). Georgia is a future pupil barrister who has worked for nine years in the women’s voluntary sector, primarily supporting survivors of domestic abuse and the LGBTQI+ community. She tweets as @FinebergGeorgia

“What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?” 

Sir James Munby (HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602 (Fam) (para 3).

What is a Declaration of Parentage? 

Section 55A of the Family Law Act (1986) provides that a person may apply to the High Court or the Family court for a declaration as to whether the subject of the application is or is not the parent of the applicant or another person.

Section 14A of the Births and Deaths Registration Act (1953) permits the re-registration of a birth under limited circumstances, one being where the court has made a declaration of parentage. When a birth is re-registered, the birth certificate is amended (i.e., to add the newly discovered parent), but the original entry is not erased.

The court has jurisdiction and, therefore, will only consider applications under s55A if either of the named persons are domiciled in or have habitual residence in England and Wales on the date of the application.

The court will also refuse to hear an application unless it considers that the applicant has “sufficient personal interest in the determination of the application.”

Section 55A (4) sets out the “exceptions”, or rather cases where such “personal interest” is assumed. Cases falling into this category are those where:

  1. The applicant is applying to be declared the parent of a child named in their application. 
  2. The applicant is applying for someone else they name in their application to be declared their parent.
  3. Or the applicant is seeking to have another person named as the parent of their child. 

The court has further powers to refuse to hear an application under section 55A (5) if a named person is a child and the court does not consider that a determination would be in their best interests.

X v Y – What was the case about?

In X v Y [2022] EWFC 77 (07 July 2022) Mrs Justice Theis was required to balance the competing rights of the applicant and respondent in determining an application for a declaration of parentage under s55A FLA (1986). 

The applicant was born in 1971 to an unmarried mother who later married and had two other children. The applicant’s mother informed her as a teenager that the man she was married to – her siblings’ father – was not her father. The applicant asked her mother for more information concerning the identity of her biological father, but she was not forthcoming.

In 2018, taking the matter into her own hands using an ancestry website, the applicant identified a man she believed to be her father. Her mother corroborated the information provided on the site, admitting she had had a brief relationship with the man in question (the respondent) at the relevant time.

The applicant attempted unsuccessfully to contact the respondent. Subsequently, she instructed a solicitor. The respondent confirmed that he had had a brief relationship with the applicant’s mother but made clear he wished to have no social relationship with the applicant. He initially agreed to provide DNA to settle the question of parentage but later changed his mind and thereafter refused to provide DNA samples. 

Despite this refusal, the respondent did not dispute the version of events the applicant and her mother provided. Furthermore, he stated that if an application for a declaration of parentage was made, he would not oppose it.  

The court’s powers to require DNA evidence

One of the difficulties, in this case, was that the respondent did not consent to providing the DNA sample, which would have almost certainly proved that he was the applicant’s biological father. Section 20 of the Family Law Reform Act (FLRA) 1987 grants the court power to require blood tests in an application regarding a determination of parentage.  However, section 21 of the FLRA limits those powers, mandating that DNA samples can only be obtained with consent. Since his relationship with the applicant’s mother, the respondent had married and had children. He emphasised that proceedings were highly distressing to his family and wished to take no action whatsoever (including providing a DNA sample), which could be read by the applicant as an indication he would consider having any relationship with her.

The right to know one’s identity is a human right

It has been established for some time by cases such as (Mikulić v Croatia (Application No 53176/99) [2002] 1 FCR 720, ECtHR) that the right to identity is an essential component of the right to respect to private life under Article 8(1) of the European Convention of Human Rights. The fact that the applicant could not, because of the unwillingness of the respondent to engage in proceedings, resolve the matter of her identity directly threatened her Article 8 (1) rights. ECHR jurisprudence established in Marckx v Belgium (Application No. 6833/74) (1979) 2 EHRR 330 identified within Article 8 a positive obligation on the courts to ensure the protection of rights in a manner which is “real and effective” rather than “theoretical and illusory”. In short, the applicant’s dilemma was legally untenable, and the family court needed to resolve it.

The court’s power to draw inferences

In Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, 473B, Waite LJ stated that if a party, giving no cogent reasons, refuses to provide a DNA sample, the refusal can only be logically understood to be for the purpose of hiding the truth. In such cases, the court may draw inferences to determine the application. This approach was followed by Ward LJ in the Court of Appeal case Re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89; 1996] 2 FLR 65.

To resolve the case in question, Mrs Justice Theis, taking the evidence as a whole inclusive of the inferences drawn from the respondent’s refusal to provide DNA, granted the declaration of parentage that was clearly so important to the applicant. Whether the declaration, in lieu of DNA evidence, provided the applicant with the closure she needed is unclear. However, this is an excellent example of the court applying common sense and compassion to bring about the most reasonable resolution in proceedings of high personal significance. 

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