Declaration of paternity - Registration of declaration - Judge deferring registration of declaration of paternity until children informed

Re F (children: declaration of ­parentage): CA (Civ Div) (Lord Justice Thorpe, Lady Justices Black, Hallett): 14 December 2011

The applicant was the biological father of twins.

The respondents were the mother and psychological father, and the instant proceedings had concerned the paternity of the twins and whether their paternity should be revealed to them in the face of strong opposition from the respondents.

An order had been made that the twins should be told of their true paternity, but that registration of the declaration of their paternity with the registrar general of births, marriages and deaths (the registrar general), pursuant to section 55A(7) of the Family Law Act 1986, be deferred. Since rule 3.13 of the Family Proceedings Rules 1991, SI 1991/1247 (the 1991 rules), which had been relevant at the date of the judge’s order, had required notification to be made to the registrar general within 21 days of the declaration of parentage, the judge deferred registration for a period of four months until the children had been informed. Matters had rested that way until, over a year later, the judge had been obliged to exercise his discretion afresh in light of developments, which justified an application for the variation of his earlier order that the children should be informed within a period of four months.

The applicant sought an order that the declaration should be perfected so that the court officer be required to send the relevant documents to the registrar general within 21 days, in accordance with rule 8.22(2) of the Family Procedure Rules 2010, SI 2010/2955 (the 2010 rules), which had replaced rule 3.13 of the 1991 rules. The judge held that since he had done no more than to defer implementation of the order for ­disclosure of paternity, he saw no ­reason to alter his position that the registrar general should not be notified until the children had themselves been informed of the position. The applicant appealed.

The applicant submitted that the act was plain and that the instant case had been a question of status; those were public records and the judge had, in effect, conflated the question of public record registration with the infinitely more difficult welfare issues regarding the protection of the children from risk of accidentally discovering their true parentage. The respondents submitted that the judge had had a very wide discretion, and that the provisions of rule 4.1 of the 2010 rules had provided the judge with powers to displace the apparent restrictions of the act and the obligation to notify within 21 days if exercised in the interests of the children. The appeal would be allowed.

The judge had made a declaration of paternity under section 55A of the act, which had required registration within 21 days. Given that the judge had initially deferred revelation to the children for only four months, it had been within his discretion to substitute the 21-day period for that wider period to ensure that, in the short interim, there would be no risk that the registration could upset the careful scheme that the judge had been introducing.

However, the form of order that had been made over a year later had been inappropriate in purporting to make at some future date a declaration of paternity. The declaration, once made, had been there for all time. Further, it had not been open to the judge to reason that since he had been doing no more than deferring implementation he could see no reason to alter the provision that had been made the previous year that the declaration and revelation would take place simultaneously. A period of four months deferment had been towards the margin of the exercise of discretion, but a further period a year later was plainly wrong (see [19]-[21] of the judgment). Any extension of time for the registration of the declaration of parentage would be deleted from the effective order (see [22] of the judgment).

Per curiam: It is important that a clear distinction is drawn between the difficult judgment of when children are to be informed, by whom they are to be informed, how they should be prepared for the information and how they should be helped to deal with the information, and a completely separate status question that is a matter of public interest that official records are maintained effectively and that they swiftly reflect decisions of the court. It is important that the 21 days for registration, which is written into rule 8.22(2) of the 2010 rules, should be treated as the norm, and any divergence should be, if not exceptional, at least justified by exceptional circumstances (see [23] of the judgment).

Paul Storey QC and John Ward-Prowse (instructed by Dickinson Manser, Dorset) for the applicant; Pamela Scriven QC and Rebecca Butler (instructed by Dutton Gregory, Bournemouth) for the respondents; Leslie Samuels QC (instructed by Aldridge Brownlee, Bournemouth) for the guardian.