Sarah Osborne v Helen Arnold

A declaration of parentage may establish that a person was a child’s parent as a matter of fact and law. Where an adoption order was obtained because the applicant was wrongly advised to adopt a child whom she already legally parented, the High Court may revoke the order under its inherent jurisdiction in a highly exceptional case. Judicial review lies to quash an erroneous birth registration. Where necessary, the court may require a fresh registration so that the official record accurately reflects the child’s legal parentage and does not retain an adopted marking.

Sarah Osborne and Helen Arnold were the two intended parents of a child conceived through IVF. Although Osborne satisfied the statutory conditions for parenthood, the local registrar failed to register her as the child’s second female parent. She was instead advised to apply for a step-parent adoption, which was granted in 2015.

After the error was discovered, Osborne sought a declaration of parentage and revocation of the adoption order. Osborne and Arnold also sought judicial review of the registration decision. The applications and claim were heard together. The local authority and Registrar General did not oppose the relief.

1. Relief granted. The court made a declaration that Osborne was C’s parent, revoked the adoption order, granted permission to bring the judicial review claim out of time, and quashed the registrar’s decision so that a fresh birth registration could take place.
2. Under Family Law Act 1986, s 55A, a declaration of parentage provides an authoritative determination of parentage. Osborne was C’s parent as a matter of fact and law when C was born and remained so. The application therefore properly engaged s 55A.
3. The adoption order had been obtained on a fundamental mistake of fact and law. The mistake went to the root of the adoption process because no adoption order was needed. In those highly exceptional circumstances, revocation under the inherent jurisdiction was appropriate. The order was a legal aberration and revocation was plainly in C’s best interests.
4. The registrar’s refusal to register Osborne was unlawful. The statutory requirements governing parentage had been met, and Osborne was entitled to be registered as C’s second female parent. Judicial review was therefore available to quash the erroneous registration.
5. Re-registration alone would leave the adopted marking on the official record. Quashing the existing registration was necessary to restore the family to the position they would have occupied but for the unlawful decision and to enable a fresh registration without that marking.
6. The court emphasised that birth registration, although administrative in form, is fundamental to identity, legal status and family relationships.