G (Declaration of Parentage: Removal of Person Identified as Mother from Birth Certificate) (No 2)

The court may make a declaration of parentage where doing so serves the child’s best interests, including where an existing birth registration threatens to facilitate a foreign adoption that would sever the child’s legal relationship with a parent. The court may reconsider an earlier decision to defer such a declaration when circumstances materially change, particularly where a person registered as a parent refuses to engage with the proceedings. A return order may also be made or varied where the case presents exceptional features, notwithstanding general guidance favouring use of the Hague Convention process in cases engaging the Brussels IIA Regulation.

The applicant had previously been declared the child’s father under Family Law Act 1986, while the first respondent had been registered as the child’s mother despite having no genetic or gestational connection. The court had deferred deciding whether to declare that the first respondent was not the child’s mother and that the second respondent was the birth mother, to give the first respondent a further opportunity to participate.

The first respondent instead remained abroad, refused to engage with the English proceedings and obtained a provisional adoption order in Bulgaria. The applicant sought the further declaration, amendment of the birth certificate and variation of an existing return order. The central issues were whether the declaration was now in the child’s best interests and whether a return order should be made or maintained.

1. The court exercised its power under section 55A of the Family Law Act 1986 to declare that the first respondent was not the child’s birth mother and that the second respondent was. Section 55A(5) permitted the court to decline to hear or determine the application if it considered that doing so was contrary to the child’s best interests. The court now concluded that making the declaration was in the child’s interests.

2. The relevant circumstances had materially changed since the earlier hearing. The first respondent had rejected the invitation to participate, remained in Bulgaria and pursued an adoption application which could permanently remove the applicant’s legal status and relationship with the child. Correcting the birth registration was therefore one of the few, and potentially the most effective, means of preventing that consequence.

3. The court recognised the jurisdiction of the Bulgarian court in adoption matters and did not intend to trespass upon it. Nevertheless, the English court had primary jurisdiction in matters of parental responsibility and had already made orders concerning the child, including a return order and the declaration of parentage.

4. The court distinguished the general guidance in Re S (Abduction: Hague Convention or BIIA) [2018] EWCA Civ 1226, that in most cases engaging the Brussels IIA Regulation English courts should not make return orders and should leave the Hague Convention process to operate. This case was exceptional because of its unusual issues and because the return orders had been made before the child’s removal.

5. The earlier return order was varied to require the child’s return to England. The first respondent could return with the child; if she did not, the applicant was to return the child.