In a case where there is a need to determine who is the parent of a child, it is possible for an application to be made to the family court for a declaration of parentage.

Such an application is most commonly made by a father seeking a declaration that a child is biologically theirs.  There have, however, been recent cases where adult adoptees (those adopted in childhood, who are now adults) have made an application for their biological father to be declared as their parent.

In cases where a father has made an application in relation to children who have been adopted, the family court has previously held that, although jurisdiction does exist to make a declaration of parentage under Section 55a of the Family Law Act 1986, the court should not make such a declaration of parentage on public policy grounds.  The reason given is that the child’s confidential information would then have been disclosed to the applicant and that could potentially destabilise the adoptive placement.

In a decision of the High Court, re L (2022) Justice Cobb granted applications for declarations of parentage in two cases where the applications were made by adult adoptees.  Cobb J felt that those cases were quite distinct from those cases where the parent had made an application.  It was his view, that applications brought by adult adoptees, where no question about breach of confidentiality of a current adoptive placement arises, can be distinguished from an application made by birth parent seeking a post adoption declaration, where the confidentiality of the adoptive placement maybe jeopardised by the process of re-registering the child’s birth.

The Judge had to decide whether:

  • An adult who has been adopted as a child can, many decades later, obtain a declaration of parentage in favour of their biological father;
  • Whether on the facts of the case it was appropriate to make a declaration of parentage;
  • Whether rectification of the applicant’s original birth certificate is possible or compatible with adoption legislation.

In these two cases the Judge observed that neither of the applicants sought to disrupt their adoptive placements and, in fact, had both had a generally positive experience of adoptions with no wish to remove that part of their lives.  What each applicant was trying to do through their respective applications was to correct historical records on their original birth certificates to add to that document the name and identity of their birth father in order to complete their birth history.  Reregistration of birth involves an amendment to an original birth certificate without erasing the original entry.  The amendment takes the form of either additional words included on the certificate or a note in the margin.

The court granted the applications and a declaration of parentage could be made.  The Judge decided that the original birth certificate would be annotated to refer to the fact that the child in each of these cases was adopted with the addition of the names of their birth fathers.

 

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