Child Support, Pensions and Social Security Act 2000

Part 1: Child Support.

Commentary on Sections

Parentage

Section 83: Declarations of status

175.Anyone who is living in England or Wales (or who has been habitually resident there for at least a year) can seek a declaration from the High Court or a county court that:

• a named person is or was his parent; or

• he is legitimate; or

• he has or has not become a legitimated person (that is, in the same position as being born legitimate).

176.Declarations may be sought, for example, to acquire nationality or citizenship, to establish rights of inheritance or to amend a birth certification. Only the “child” in question (who may in fact be an adult) is entitled to apply for such a declaration. Both the child’s parents, if they are still alive, must be joined as respondents to the proceedings.

177.Section 56 of the Family Law Reform Act 1986 (as substituted by section 22 of the Family Law Reform Act 1987) provides for the declaration. The Family Proceedings Rules provide that both parents must be respondents.

178.A “section 56” declaration is binding on the Crown and on all other persons. The declaration is without limit in time in the UK whether for the purpose of legal proceedings or for any other purpose. The legislation makes no provision for a declaration from the court that a named person is not the child’s parent.

179.This section replaces part of the existing section 56 of the Family Law Act 1986, and also amends sections 58 and 60 of that Act. The section provides for any person to apply to a civil court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. The intention of the new section is to provide a single procedure for obtaining a declaration of parentage to replace the two free-standing provisions contained in the 1986 Act and in section 27 of the Child Support Act 1991 (which is modified to take account of the new procedure), and to widen the power to make such declarations.

180.Subsection (2) inserts a new section 55A in the 1986 Act which allows for an application for a declaration that a person is or is not the parent of another person.

New section 55A: Declarations of parentage

181.New section 55A(1) provides that any person may apply for a declaration as to whether or not a person named in the application is or was the parent of another person named in the application. The application may be made to the High Court, a county court or a magistrates’ court.

182.New section 55A(2) provides that the court can consider such an application only if either of the persons named in the application is domiciled in England and Wales on the date of the application, or has been habitually resident in England and Wales throughout the period of one year ending with that date; or if either of the persons named in the application died before the period of one year ended and was at death domiciled in England and Wales, or had been habitually resident in England and Wales for one year preceding their death.

183.New section 55A(3) and (4) will enable any person to apply for a declaration of parentage, subject to the requirement that if the applicant is not the child or one of the alleged parents concerned, then he or she will have to show a sufficient personal interest in the determination of the application. If the court is not satisfied that this is the case, it must refuse to hear the application. A person with care must automatically be treated as having a sufficient personal interest. This requirement does not apply when the application is made by the Secretary of State.

184.New section 55A(5) provides that the court may refuse to determine an application where one of the persons named in it is a child, and it considers that to determine the matter would not be in the best interests of the child.

185.New section 55A(6) provides that where the court has refused to hear an application, it may order that the applicant requires the leave of the court to apply again for the same declaration.

186.New section 55A(7) provides for notification of a declaration of parentage to the Registrar General.

187.Subsection (3) of section 83 removes the provision of section 58 of the 1986 Act that no declaration may be made by any court that any person is or was illegitimate. This is because the effect of a declaration of parentage could be that a child is or was illegitimate, which is inconsistent with the existing provision of section 58(5)(b).

188.Subsection (4) provides for a right of appeal from the magistrates’ court to the High Court. This is in addition to the right of appeal to the High Court by way of case stated, that is, on the basis that the decision is wrong in law or magistrates have acted in excess of jurisdiction; or to apply to the High Court for leave to apply for judicial review. This right of appeal must be conferred expressly. Appeals to the Court of Appeal from the High Court and the county courts are governed by existing provisions in the Supreme Court Act 1981 and the County Courts Act 1984.

189.Subsection (5) introduces Schedule 8 which provides for consequential amendments.

190.Subsection (6) provides that neither this section nor anything else in the Act will affect proceedings about declarations of parentage which are pending when these provisions take effect.