The Royal Borough of Kingston-Upon-Thames v SK (A Child) & Ors

The High Court may make a declaratory finding about a child’s age under its welfare jurisdiction where doing so provides necessary certainty for the child’s future. Parentage may be determined on the balance of probabilities, including by drawing an appropriate inference from a party’s refusal to undertake DNA testing. A child’s welfare remains the paramount consideration in placement and special guardianship decisions. Questions concerning immigration status belong to the Secretary of State, not the family court. Where a respondent has received sufficient notice of the applications and hearings but chooses not to participate, the court may proceed using its case-management powers concerning service.

The local authority sought three orders concerning S, a child in foster care: a special guardianship order in favour of her carer, a declaration that her date of birth was 21 September 2008 rather than 21 June 2010, and a declaration that Ms K was not her parent. Ms K did not attend or participate substantively, although the court found that she had been given sufficient notice.

The evidence included conflicting identity documents, medical and developmental assessments, information concerning possible trafficking, and the absence of DNA evidence disclosed by the police. The central issues were the court’s jurisdiction to determine age and parentage, the evidential inferences available, and whether S’s welfare required a special guardianship order.

1. Procedure and notice. The Family Procedure Rules 2010 gave Ms K party status in relevant applications and required service, but the court retained broad powers to dispense with, deem, or remedy service and to manage the proceedings. The repeated communications, court directions and certificates of service established that Ms K knew the nature of the applications and hearing dates. The court was therefore entitled to proceed in her absence.
2. Parentage. Under section 55A of the Family Law Act 1986, the court had jurisdiction because S was habitually resident in England and Wales. The birth certificate and Ms K’s assertions were outweighed by the absence of pregnancy records, blood-test results inconsistent with an advanced pregnancy, other recorded accounts, and Ms K’s refusal to consent to DNA testing. The court was entitled to draw an inference from that refusal and declared that Ms K was not S’s parent.
3. Age. Following LA v DN [2013] EWHC 2401 (Fam), the court confirmed that it had jurisdiction to make an age declaration where S’s welfare required certainty. The health visitor’s observations, bone-age assessment and later global developmental assessments made it more likely than not that S was born in 2008. The court fixed her date of birth as 21 September 2008.
4. DNA disclosure. The police could not disclose the DNA material because of section 63T of the Police and Criminal Evidence Act 1984 and the limits confirmed in Re Z (Children) (DNA Profiles: Disclosure) [2015] EWCA Civ 34. The court could nevertheless take account of the evidential implications of the non-disclosure and Ms K’s refusal to facilitate testing.
5. Special guardianship. Applying section 1 of the Children Act 1989, the court found that S’s welfare could only be met by a special guardianship order in favour of Ms A. The order reflected S’s wishes and needs, the secure attachment formed during three years of care, and Ms A’s demonstrated ability to provide long-term stability. The placement-order application was withdrawn, and the special guardianship order was made, subject to the agreed support arrangements and a continuing undertaking concerning a DBS check.

The judgment describes earlier care proceedings in which a final care order was made on 23 January 2014. The present judgment was a first-instance determination of the local authority’s applications concerning parentage, age and special guardianship. No appeal is stated.