Who is my parent? Is this my child?

In the recent case of X v Y [2022] EWFC 77, X successfully applied to the Family Court for a declaration that Y was her parent, despite there being no positive DNA test and Y not wanting any relationship with X. The case raises issues of both law and of personal identity.

The Facts

X was born in 1971. At the time, her mother was unmarried but later went on to marry and have two more children with a different man. As a teenager, X was told that her mother’s husband was not her biological father. In 2018, at the age of 47, X searched for her biological father herself using ancestry websites and a genealogist. Ultimately, she was able to find the man who was most likely to be her biological father: Y. Her mother confirmed that she had had a brief relationship with Y but after attempts to contact Y, it was clear that Y was not interested in establishing any type of relationship with X. By this point, Y had his own separate family.

X engaged solicitors and through correspondence, Y confirmed that he had a short relationship with X’s mother in the past but that he did not want any sort of relationship with X. Around the end of 2020 and the start of 2021, Y agreed to a DNA test but by September 2021, he was no longer willing to take the test. He did, however, confirm that if X applied for a declaration of parentage that he would not oppose this. So, X made an application to court for a declaration that Y was her father.

The Law

The case of X v Y engages a few different areas of law:

  1. The Court’s Power to Declare Parentage

    Under section 55A of the Family Law Act 1986, the Family Court can make a declaration as to whether or not a person named in the application (Y) is or was the parent of another person so named (X). The court could only hear an application for a declaration of parentage where it considered that X had sufficient personal interest in the determination or where the relationship between X and Y was a parental one. X’s application satisfied this.

    If a declaration of parentage were ultimately made, then under the Births and Deaths Act 1953, this would entitle X to amend her birthday certificate to record the additional parent.
     
  2. A Court’s Powers where a Party refuses a DNA Test 

    Under the Family Law Reform Act 1969, the court can order the use of a DNA test to determine X’s parentage but only if Y consents.  However, the court is permitted to make such inferences from Y’s lack of consent as they consider proper in the circumstances.

    The inference that is likely to be made was neatly summarised in the case of Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463 as follows ‘Against that background of law and scientific advance, it seems to me to follow, both in justice and in common sense, that if a mother makes a claim against one of the possible fathers, and he chooses to exercise his right not to submit to be tested, the inference that he is the father of the child should be virtually inescapable.’
     
  3. X’s right to Respect for Private and Family Life 

    Under Article 8 of the European Convention of Human Rights, each person has a right to respect for their private and family life and under Article 3, the law must be read in a way to give effect to this right. Case law has recognised that a right to identity is a fundamental element of a person’s Article 8 right. 

The Judgment

The Court ultimately made a declaration of parentage that Y was X’s father, entitling X to amend her birth certificate to reflect this.

In one sense, the decision seems obvious and perfectly sensible: X sought a declaration of parentage and Y did not oppose this, so the Court made such a declaration. But the personal implications of the case and decision should not be forgotten. X may well have received the declaration of parentage that she sought, but she did not receive the DNA test that would have objectively proven that Y was her father and certainly did not receive the parental relationship she may have hoped for. Meanwhile, Y was not forced to prove his paternity by DNA test or engage in a father-daughter relationship but is nevertheless now fully aware that he has a biological daughter in the world.

The case gives cause to think about what it means to know who your parent or child is. In the words of Sir James Munby taken from a different case: ‘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?’

 

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