An unusual judgment has recently been made by Mr Justice Williams in G (Declaration of Parentage – Removal of Person Identified as Mother from Birth Certificate) (No2)  EWHC 3361 (Fam).
The case involves a six year old child, known in proceedings as ‘Naomi’ whose original English birth certificate did not record her birth mother and father but only recorded her mother as being a woman who was in a relationship with her father at the time of her birth.
The circumstances surrounding Naomi’s birth are also unusual. It was the father’s case that, despite being in a relationship with the mother at the time, he had wanted to have his own child and so had entered into an informal surrogacy arrangement with a woman in Bulgaria, which was also the mother’s country of origin. The child was conceived at a clinic in Bulgaria using the father’s sperm and a donor egg and the surrogate came to England to give birth. The father said that he was not aware that he needed to register Naomi and so his partner had been able to fraudulently record herself as mother on the birth certificate. It was her case that she had herself had given birth to Naomi and that either the father or a co-worker was the genetic father.
The parties split up after the child had been born. The father, on learning that he was not registered as Naomi’s father, became concerned that the mother would take Naomi away from him and issued proceedings to make Naomi a ward of court. It seems that the mother then tried to do everything she could to exclude the father from Naomi’s life including making allegations that he had sexually assaulted the child. Those allegations were investigated by the local authority and found to be baseless. In October 2017, the mother took Naomi to Bulgaria and that father started proceedings to have her returned and for a declaration under section 55A of the Family Law Act 1986 that he was Naomi’s father and the mother was not her mother.
At the hearing in July 2018, Mr Justice William’s found that the father’s version of how Naomi was conceived and born was the correct version although he did not accept that the father had acted without the mother in deciding to have a child via a surrogacy arrangement. DNA evidence was not available but there were records from the Bulgarian clinic which recorded the conception between the father and the surrogate. There was also a clear discrepancy in the height and weight data of the mother and the person who attended to give birth at the hospital in England. The judge acknowledged that the mother might have been able to lose some weight but that she could not lose 7cm in height. Perhaps the final insurmountable hurdle the mother had to overcome was that she had gone through early menopause following treatment for breast cancer and so could not have become pregnant. The Judge therefore made a declaration of parentage in respect of the father. This meant that the child’s birth certificate would be amended and enabled the police to take action to try and return Naomi to this jurisdiction.
The Judge, however, exercised discretion under section 55A(5) in respect of the mother which requires consideration of the welfare of the child and refused to make any declaration in respect of the identity of Naomi’s mother. This was because, by this time, Naomi identified the mother as her psychological mother and was living with her somewhere in Europe. The mother was also refusing to engage in proceedings. The Judge was concerned that, if such a declaration was made, removing the mother’s legal rights in respect of Naomi, the consequences for the child were unknown and could be distressing. The Judge also recorded a ‘forlorn hope’ that the mother would see that her rights had not automatically been taken away and decide to engage in the proceedings. He concluded his judgment by making it very clear that his findings did not in any way determine what the arrangements for Naomi’s care should be and that it could result in Naomi remaining with the mother in Bulgaria or elsewhere. A further hearing was listed and the child’s guardian was instructed to try and make contact with the mother.
The Judge’s cautious optimism was not rewarded. The matter returned urgently to court before the listed return date. This was because it had been discovered by the father that the mother had since married and was now applying for her new husband to adopt the child and relying on the original English birth certificate (which did not reference the father). It appeared that the adoption proceedings had been started in direct response to the child’s guardian attempting to contact the mother and they were about to be concluded. This would have permanently excluded the father from the child’s life. The mother had, however, made contact the child’s guardian but unfortunately only to confirm that she had no intention of returning Naomi or engaging with proceedings.
Taking into account the mother’s conduct, including her refusal to engage with proceedings, her abduction of the child to Bulgaria, the false allegations she had made against the father and the timing and consequences of the Bulgarian adoption proceedings, Mr Justice Williams had no hesitation in his second judgment in making a declaration of parentage the mother was not the Naomi’s legal mother. This meant that the English birth certificate would be amended again and sent to the Bulgarian authorities with the hope that this would prevent the adoption taking place and facilitate the child being return to England. The Judge justified his position by stating that “It is in [the child’s] best interests because it appears to be one of the few routes, and perhaps the most effective route, to prevent [the mother] pursuing an application which will have the effect of eradicating the father from [the child]’s life.”
Declarations of parentage are usually made when it is necessary to identify the legal parents of a child so that they can have a meaningful role in that child’s life. It is highly unusual for such a declaration to be used to prevent a parent from being excluded from a child’s life as a result of foreign adoption proceedings. It remains to be seen what the final outcome of this case will be, both in relation to the short-term return of the child to this jurisdiction, and the longer-term care arrangements which have yet to be considered. It is, however, important to consider that, where appropriate, the English courts will consider all available options to ensure that children who are wrongfully abducted or retained are returned to this jurisdiction so that a proper analysis of their welfare can be carried out.
The case is also a reminder of the risks of entering into informal surrogacy arrangements and not formalising the legal status of children born to surrogates correctly.
Emma Nash is a Partner at iFLG. She provides clients with advice and support in relation to a comprehensive range of family law issues including child maintenance, financial provision on divorce, and financial claims by cohabiting couples.
The International Family Law Group LLP
2 January 2019