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Part V Family Law, 23 Declarations

Paul Torremans

From: Cheshire, North & Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Content type:
Book content
Product:
Private International Law [PRIL]
Published in print:
28 September 2017
ISBN:
9780199678983

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Subject(s):
Choice of law clauses — Children — Legitimacy and adoption — Marriage

(p. 1049) 23  Declarations

1.  Introduction

For many years, the courts had power, both under their inherent jurisdiction1 and by statute,2 to make declarations as to status. The purpose of such a declaratory judgment is not to determine the rights of the parties and to grant the appropriate relief but merely to affirm what their rights are without any reference to the enforcement of such rights. For many years, the courts had statutory power3 to grant declarations of legitimacy,4 of legitimation, of the validity of a marriage or that the petitioner is a British subject. They have exercised their inherent powers to declare that a foreign divorce or annulment should, or should not, be recognised in England.5 There was no power, however, to declare the invalidity of a marriage by declaration: that had to be done in nullity proceedings.6 Whether a marriage could be declared valid under the inherent jurisdiction was a matter of doubt and uncertainty.7 Certainly declarations were made as to the subsisting validity of a marriage;8 but it has also been said9 that declarations as to the initial validity of a marriage could only be made in the exercise of the statutory powers. The significance of this was that the jurisdictional grounds varied as between the two heads of jurisdiction and, furthermore, various procedural safeguards were available under the statutory jurisdiction but not in the exercise of the inherent powers.

In 1984, the Law Commission expressed concern as to the general state of the law on declarations in family matters, identifying a number of major defects.10 They proposed a clean sweep (p. 1050) and a fresh start, recommending “a new legislative code, based on consistent principles [to] replace the existing hotchpotch of statutory and discretionary relief”.11 That was achieved in Part III of the Family Law Act 1986. In that year, the Law Commission also recommended that there should be a power to grant declarations of parentage and that such declarations should be governed by essentially the same rules as those contained in the 1986 Act for other declarations, particularly those of legitimacy.12 That particular recommendation was implemented by amendments to Part II of the 1986 Act, as introduced by the Family Law Reform Act 1987.13

2.  Family Law Act 1986, Part III

Part III of the 1986 Act states what kinds of declaration may be granted under the Act and what are the relevant jurisdictional rules for each class of declaration. The four classes of declaration, ie declarations as to marital status, of parentage, as to parentage, legitimacy or legitimation, and as to adoptions effected overseas will be considered separately. A number of matters which are common to all four classes will then be examined. It ought to be noted at the outset that the various types of declaration listed in Part III may only be granted by the court14 on the basis of the rules there laid down; section 45 of the Matrimonial Causes Act 1973 has been repealed15 and the inherent jurisdiction of the High Court is inapplicable to matters falling within Part III.16 On the other hand, however, on the basis of their inherent jurisdiction, courts have recently been willing to grant other types of declarations as to status. For example, the following types of declarations have been made: a) that there never had been a marriage between the parties as the alleged “marriage ceremony” fell within the category of a “non-marriage”; b) that the foreign marriage was not capable of recognition in England and Wales for want of consent, and amounted to a “non-marriage” (implicitly or explicitly);17 and c) that a vulnerable adult who was at risk of being taken abroad for the purpose of marriage did not have the capacity to marry.18 The first type of declarations, as set out above, may concern either a “marriage ceremony” conducted abroad,19 or a “marriage ceremony” that (p. 1051) took place in England.20 In either case the ceremony is characterised by a wholesale failure to comply with the formal requirements of the law of the place of celebration; the failure being of such a severity that the ceremony is incapable of creating a marriage (not even a void one) under the applicable law. With regard to the second type of declarations, the lack of consent can arise either on account of a mental impairment of one of the parties to the marriage,21 or on account of duress in cases involving a forced marriage.22

(a)  Declarations as to marital status

There are five declarations which the court may make in this category,23 all of which had been made under the old law, ie:

  1. (i)  that the marriage24 was valid at its inception;25

  2. (ii)  that it did subsist on a date specified in the application;26

  3. (iii)  that it did not so subsist on a date so specified;

  4. (iv)  that the validity of a divorce, annulment or legal separation obtained outside England and Wales is entitled to recognition in England and Wales;27 and

  5. (v)  that the validity of such a divorce, etc so obtained is not entitled to recognition in England and Wales.

The jurisdictional rules for granting any of those five types of declaration are as follows:28 that either party to the marriage 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. If a party to the marriage is dead then the jurisdictional requirements of domicile or one year’s habitual residence in England and Wales have to be satisfied at the date of death.29 The jurisdictional connection is not with the applicant but rather with a party (p. 1052) to the marriage and this accounts for the need for a rule, as in nullity, dealing with the case where a party to the marriage had died.30 The reason for the connection being with the party to the marriage is because section 55 of the 1986 Act allows anyone to apply for one of the five listed declarations. If, however, the applicant is not a party to the marriage, the court has a discretion to refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of the application.31 As under the old law, a declaration may not be made that a marriage was void at its inception.32 That is to be determined by means of a nullity petition, the powers to grant which are unaffected by Part III of the 1986 Act.33 In this way, a party will be unable to avoid the ancillary relief powers of the court available on a nullity petition, by seeking instead a declaration where such powers are unavailable.34 The Domicile and Matrimonial Proceedings Act 1973 provides35 that, in the case of any proceedings36 for a declaration as to the validity of a marriage of the petitioner or as to the subsistence of such a marriage, the court has a discretion to stay the English proceedings before the beginning of the trial thereof. This would seem to cover all five declarations as to marital status falling within section 55 of the 1986 Act. The statutory discretion is the same as that in divorce proceedings and has been fully discussed in that context.37

(b)  Declarations of parentage

Section 55A of the 1986 Act,38 inserted by section 83(2) of the Child Support, Pensions and Social Security Act 2000, introduced a new, wider power whereby any person39 may apply to a civil court40 for a declaration as to whether or not a person named in the application is or was the parent of another person so named. Section 55A is intended to provide a single procedure for obtaining a declaration of parentage to replace the two discrete provisions contained in the 1986 Act and in section 27 of the Child Support Act 1991 (effective only for the purposes of child support and maintenance proceedings). The court can entertain an application only if either of the persons named therein is domiciled in England on the date of the application, or has been habitually resident in England throughout the period of one year (p. 1053) ending with that date; or if either of the persons named in the application died before the date of application, and was at death domiciled in England, or had been habitually resident in England for one year preceding his/her death.41

If the applicant is not the child or one of the alleged parents concerned, then the court shall refuse to hear the application unless it considers that the applicant has a sufficient personal interest in the determination of the application.42 Additionally, the court may refuse to hear the application if one of the persons named in it is a child, and it considers that the determination would not be in the best interests of that child.43

(c)  Declarations of parentage, legitimacy or legitimation

Section 56 of the 1986 Act44 retains and slightly extends the previous statutory power45 to make declarations as to legitimacy and legitimation,46 and introduces a new power to make declarations of parentage.47 The court48 may make four kinds of declaration in this category:

  1. (i)  that a person is or was the applicant’s parent;

  2. (ii)  that the applicant is the legitimate child of his parents; and

  3. (iii)  that the applicant has, or has not, become a legitimated person.49

Declarations as to legitimation50 may relate to legitimation by statute, or to foreign legitimations which are recognised in England either under statutory provisions or at common law.51 Declarations may be sought, for example, to acquire nationality, to establish rights of inheritance or to amend a birth certification. Only a person alleging that he is the child of someone may apply for a parentage declaration; and an application for a declaration as to legitimacy or legitimation may be made only by the person whose status is in issue.52

The jurisdictional rules for granting any of these declarations are the simple and familiar ones that the applicant is, at the time of the application, domiciled in England or has been habitually resident in England for one year immediately preceding that date.53

(p. 1054) (d)  Declarations as to adoptions effected overseas

Whilst recognition in England of adoption orders made elsewhere in the British Isles is automatic,54 this is not true of foreign adoptions.55 Although there is no reported case of an application for a declaration as to the validity of a foreign adoption,56 the Law Commission concluded57 that it would be desirable to take the opportunity to make clear provision for such declarations and to provide appropriate procedural safeguards.58 Under section 57(2) of the Family Law Act 198659 the court60 may grant a declaration that the applicant either is61 or is not the adopted child of a particular person.62 The only person who can apply for a declaration as to the validity of a foreign adoption is the child himself, and he can apply whether he has been adopted by a Convention adoption, or an overseas adoption, within the meaning of the Adoption and Children Act 2002,63 or an adoption recognised by English law and effected under the law of any country outside the British Islands.64 The specific terms of section 57(1)(b) denote the discrete two stage character of the process of recognition and then declaration. In particular, before an application can be made for a declaration, the applicant must be able to demonstrate that the adoption is “recognised by the law of England and Wales”.65 Again the jurisdiction of the court is based on the domicile of the applicant in England on the date of the application or his habitual residence in England for one year immediately preceding that date.66

(e)  Limits on the courts’ powers

The basic approach of Part III of the 1986 Act is that the court may make the declarations listed there in family matters but may make no others.67 Thus, as was mentioned earlier, there is express provision that no court may make a declaration as to the initial invalidity of a marriage,68 and that the declarations available under Part III of the 1986 Act may only be made under that Part.69 This latter provision excludes any possibility of the exercise of an overlapping jurisdiction under the inherent powers of the court.70 It is also not possible for a (p. 1055) court to make a “negative declaration”, ie to declare the opposite of what is sought,71 eg that a marriage was not subsisting on a particular date when a declaration is sought that it was.72 There is nothing, however, to prevent a petitioner in that case from petitioning for the two declarations in the alternative, and indeed the Act expressly refers to this possibility in relation to declarations as to legitimation and adoption.73

(f)  Safeguards and other procedural matters

All declarations made under Part III of the 1986 Act are binding in rem, ie they bind not only the parties but all other persons including the Crown.74 It is important that in matters of personal status some finality is brought to the proceedings in order to still any doubts on the issue, and declarations as to the validity of a marriage, for example, are very close in nature to decrees of divorce or nullity which do operate in rem. Although it is always possible for a declaration, like any other judgment, to be rescinded for fraud, the binding nature conferred on declarations under Part III does call for a number of procedural safeguards to protect the interests of third parties and of the public.

The first concern is that a declaration should only be granted on convincing evidence, and it is provided that the truth of the proposition to be declared has to be proved “to the satisfaction of the court”.75 A further safeguard is provided by involvement of the Attorney-General to enable him to protect the public interest.76 The outcome of a petition for a declaration could be highly relevant, for example, on issues of nationality77 or immigration.78 To meet these concerns, it is provided that the court may at any stage of the proceedings, either of its own motion or on the application of a party to the proceedings, direct that all papers be sent to the Attorney-General who may, whether or not he has been sent the papers, intervene in the proceedings in such manner as he thinks necessary or expedient.79 It is also desirable that adequate provision be made for giving notice of the proceedings to all interested parties and to the Attorney-General, and power is given to make rules of court for that purpose.80

Finally, there is the issue of whether declarations under Part III should be available as of right, or only within the discretion of the court. The power of the court to grant a nullity decree is not discretionary,81 and it has been said that “the right to obtain a declaration of status is a human right which should not be subject to the court’s discretion”.82 Consequently, section 58(1) of the 1986 Act requires the court to make a declaration if the truth of the proposition to be declared is proved to the satisfaction of the court. There is, however, one exception to this in that the court may refuse to grant a declaration if to do so “would manifestly be contrary to public policy”.83 This follows the approach of the earlier law, when courts were (p. 1056) prepared to refuse a declaration as to the subsisting validity of a marriage, under section 45 of the Matrimonial Causes Act 1973, on grounds of public policy:

It cannot be the intention of the statute that a decree must be pronounced (to the permanent prejudice of the Crown) when, although there has been no fraud at the hearing, the whole history is of fraud and perjury and the facts to found a decree have been brought about by criminal acts and offences and a fraudulent, deceitful course of conduct.84

3.  Child Abduction and Custody Act 1985

In terms of Article 15 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction,85 the judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state. The Central Authorities of the Contracting States shall, so far as practicable, assist applicants to obtain such a decision or determination.

Section 8 of the Child Abduction and Custody Act 1985, which gives effect to the Convention in the United Kingdom, provides that the High Court86 may, on an application made for the purposes of Article 15 of the Convention87 by any person88 appearing to the court to have an interest in the matter, make a declaration that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention.89

A declaration should not be sought in a case where it is likely unnecessarily to delay or hamper the application for a return order.90 This may occur, for example, where the requesting State has either not incorporated Article 15 into its domestic law or, alternatively, has (p. 1057) no experience of its operation.91 It has therefore been suggested that, as an alternative to a request for an Article 15 declaration, the court might consider soliciting an opinion from a single joint expert92 or the relevant liaison judge, whilst making use of the European Judicial Network.93 A declaration made for the purposes of Article 15 is not binding on the requesting authority or the Courts of that country, but is designed to be of assistance. Although, strictly, a declaration so obtained is no more than persuasive,94 it has recently been held by the House of Lords that a determination under Article 15 should be treated as determinative unless clearly out of line with the international understanding of the Convention’s terms.95

4.  Civil Partnership Act 2004

Section 58 of the Civil Partnership Act 2004 provides that any person may apply to the High Court or the family court for one or more of the following five96 declarations in relation to a specified civil partnership:

  1. (i)  that the civil partnership was valid at its inception;

  2. (ii)  that it subsisted on a date specified in the application;

  3. (iii)  that it did not so subsist on a date so specified;

  4. (iv)  that the validity of a dissolution, annulment or legal separation obtained outside England and Wales is entitled to recognition in England and Wales; and

  5. (v)  that the validity of such a dissolution, etc so obtained is not entitled to recognition in England and Wales.

Sections 59 (general provisions as to making and effect of declarations), 60 (the Attorney General and proceedings for declarations) and 61 (supplementary provisions as to declarations) of the 2004 Act reproduce the terms of sections 58, 59 and 60 of the Family Law Act 1986,97 mutatis mutandis, with regard to declarations in relation to civil partnerships.

5.  Marriage (Same Sex Couples) Act 2013

The Marriage (Same Sex Couples) Act 2013 has inserted a new Schedule A1 into the Domicile and Matrimonial Proceedings Act 1973. Para 4 of the Schedule sets out jurisdictional grounds (p. 1058) for proceedings for a declaration of validity of a same sex marriage. The first part of this provision98 replicates the terms of s 55(2) of the Family Law Act 1986, with regard to jurisdiction for granting declarations as to marital status in respect of opposite sex couples.99 It states that the English court has jurisdiction to entertain an application for a declaration of validity of a same sex marriage if either of the parties to the marriage (a) is domiciled in England on the date of the application, or has been habitually resident there throughout the period of one year ending with that date, or (b) died before that date and either was at death domiciled in England or had been habitually resident there throughout the period of one year ending with the date of death.

The second part of para 4 of the Schedule100 embodies a special “forum necessitatis” rule to enable the exercise of jurisdiction, on a discretionary basis, in exceptional cases where otherwise the parties would have no access to the English court. By this provision, the English court has jurisdiction to entertain an application for a declaration of validity if the parties married each other under the law of England and Wales, and it appears to the court to be in the interests of justice to assume jurisdiction in the case.101

6.  Presumption of Death Act 2013

The Presumption of Death Act 2013 states that the court may, on application of a person with sufficient interest, make a declaration that a missing person is to be presumed dead.102 One of the effects of a declaration of presumed death is that it ends the missing person’s marriage or civil partnership.103 Under the 2013 Act, the English court has jurisdiction for proceedings for a declaration that a missing person is presumed to be dead if: (a) either the missing person was domiciled in England and Wales at the date on which he or she was last known to be alive or had been habitually resident there for the whole of the year ending with that date;104 or, (b) if the application was made by the spouse or civil partner of the missing person, the spouse or civil partner was domiciled in England and Wales when the application was made or had been, for one year immediately preceding the application, habitually resident there.105

Footnotes:

1  Under RSC Ord 15, r 16.

2  Matrimonial Causes Act 1974, s 45 (repealed by Family Law Act 1986, ss 68(2), 69 and Sch 2).

3  Ibid.

4  But not of illegitimacy: Mansel v A-G (1877) 2 PD 265; affd 4 PD 232; B v A-G [1967] 1 WLR 776.

5  Har-Shefi v Har-Shefi[1953] P 161; Law v Gustin [1976] Fam 155; Kendall v Kendall [1977] Fam 208; Lepre v Lepre [1965] P 52 at 57; Lawrence v Lawrence [1985] Fam 106.

6  Kassim v Kassim [1962] P 224.

7  See Law Com No 132 (1984), paras 2.7–2.8; North, op cit, Chapter 6.

8  Eg Garthwaite v Garthwaite [1964] P 356; Re Meyer [1971] P 298.

9  Collett v Collett [1968] P 482; Aldrich v A-G [1968] P 281; Vervaeke v Smith [1981] Fam 77; affd [1981] Fam 77, CA, [1983] 1 AC 145; Williams v A-G [1987] 1 FLR 501; though this was actually done in Woyno v Woyno [1960] 1 WLR 986.

10  Law Com No 132 (1984), para 2.12.

11  Ibid, para 2.13.

12  Law Com No 156 (1986), para 3.14.

13  S 22.

14  The High Court or the family court.

15  This means that there is no longer a statutory power to grant a declaration that the applicant is a British citizen. Any inherent power to make a declaration that a person is a British citizen is unaffected, as in Bulmer v A-G [1955] Ch 558; A-G v Prince Ernest Augustus of Hanover [1957] AC 436; Motala v A-G [1990] 2 FLR 261, revsd on another point [1992] 1 AC 281, infra, pp 1198–9.

16  S 58(4). It is unlikely that foreign declaratory judgments in personam would be recognised in England—and no rules have been devised for the recognition of foreign declarations in rem. This is probably because it would usually require an English declaration to recognise the foreign one: see North, Private International Law of Matrimonial Causes, p 300.

17  Either on account of a mental impairment of one of the parties to the marriage— Westminster City Council v IC (A Protected Party by His Litigation Friend) and Ors [2008] EWCA Civ 198; XCC v AA [2012] EWHC 2183 (COP); and Luton Borough Council v SB and another [2015] EWHC 3534 (Fam); or on account of duress in cases involving a forced marriage—SH v NB [2009] EWHC 3274 (Fam); B v I (Forced Marriage) [2010] FLR 1721; and Re P (Forced Marriage) [2010] EWHC 3467 (Fam). Cf A Local Authority v X [2013] EWHC 3274 (Fam)—declaration of non-recognition refused in relation to a marriage which had taken place between a fourteen-year-old girl and a twenty-four-year-old-man in Pakistan and under duress, as the girl could issue a petition for a decree of nullity on the ground that the marriage was void by virtue of her age.

18  Eg X City Council v MB [2006] EWHC 168 (Fam).

19  Eg Hudson v Leigh [2009] EWHC 1306 (Fam)—South Africa.

20  Eg Galloway v Goldstein [2012] EWHC 60 (Fam)—the deficient ceremony in England followed a valid marriage ceremony in Connecticut.

21  Eg Westminster City Council v IC (A Protected Party by His Litigation Friend) and Ors [2008] EWCA Civ 198; XCC v AA [2012] EWHC 2183 (COP); and Luton Borough Council v SB and another [2015] EWHC 3534 (Fam).

22  SH v NB [2009] EWHC 3274 (Fam); B v I (Forced Marriage) [2010] FLR 1721; and Re P (Forced Marriage) [2010] EWHC 3467 (Fam). Cf A Local Authority v X [2013] EWHC 3274 (Fam)—declaration of non-recognition refused in relation to a marriage which had taken place between a fourteen-year-old girl and a twenty-four-year-old-man in Pakistan and under duress, as the girl could issue a petition for a decree of nullity on the ground that the marriage was void by virtue of her age.

23  S 55(1). See also the Family Procedure Rules 2010, rr 8.18–8.21. Additionally, the court may, on application of a person with sufficient interest, make a declaration that a missing person is to be presumed dead. One of the effects of such a declaration is that it ends the missing person’s marriage. See Presumption of Death Act 2013, s 3(2)(b). The procedure is applicable also in relation to civil partnership (ibid. See infra, p 1058), and same sex marriage (see Domicile and Matrimonial Proceedings Act 1973, Sch A1, para 3(a)).

24  For equivalent rules pertaining to civil partnership, see infra, p 1057.

25  Eg Bellinger v Bellinger [2003] 2 AC 467; A v A (Attorney General Intervening) [2012] EWHC 2219 (Fam); Khan v Ahmad [2014] EWHC 3850 (Fam); and N v D (Customary Marriage) [2015] EWFC 28. Cf MO v RO [2013] EWHC 392 (Fam). See also Westminster City Council v IC (A Protected Part by His Litigation Friend) and Ors [2008] EWCA Civ 198, [2008] WCR (D) 92—the only route to a judicial conclusion that a marriage was void at its inception is a petition for nullity.

26  Eg Khan v Ahmad [2014] EWHC 3850 (Fam); GE v KE and AE (Nigerian Customary Marriage and Divorce) [2013] EWHC 1938; and Galloway v Goldstein [2012] EWHC 60 (Fam).

27  Eg Berkovits v Grinberg [1995] Fam 142; Abbassi v Abbassi [2006] EWCA Civ 355; [2006] 2 FLR 648.

28  S 55(2). The rules are modelled on those which applied to nullity decrees prior to the entry into force of Council Regulation (EC) No 1337/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. Cf Domicile and Matrimonial Proceedings Act 1973, s 5(3). Supra, p 954 et seq.

29  S 55(2)(c). The effect of these rules is to abolish the common law ground of jurisdiction that a declaration could be granted as to the validity of a foreign divorce if that was a necessary step in adjudicating on a matter within the jurisdiction of the court: Lepre v Lepre [1965] P 52; see Law Com No 132 (1984), para 3.45.

30  This can be very useful, as in Re Meyer [1971] P 298.

31  S 55(3); see Berkovits v Grinberg supra—application by Jewish ecclesiastical judge. See Law Com No 132 (1984), paras 3.29–3.33 for discussion of the issue of who should be able to apply for these declarations.

32  S 58(5)(a).

33  S 58(6).

34  Kassim v Kassim [1962] P 224. It will, however, be possible for a petitioner to seek in the alternative a nullity decree or a declaration as to the validity of the marriage: Law Com No 132 (1984), paras 3.26–3.27.

35  Sch I, para 9.

36  Other than proceedings governed by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000. Supra, p 968 et seq.

37  Supra, p 972 et seq.

38  See also Family Procedure Rules 2010, rr 8.18–8.22.

39  The power is wider than that in s 56 (discussed, infra, p 1053). Subject to s 55A(3) and (4), any person may apply under s 55A(1) for a declaration of parentage of a person named in the application, whereas application may be made under s 56 only by an applicant in respect of his own parentage/status. See Leeds Teaching Hospital NHS Trust v A and Ors [2003] EWHC 259 (QB); [2003] All ER (D) 374; Secretary of State for Work and Pensions v Jones (2003) Times, 13 August; Re B (A Child) (Parentage: Knowledge of Proceedings) [2003] EWCA Civ 1842; [2004] 1 FLR 473; Re F (Children) (Paternity: Registration) [2011] EWCA Civ 1765; Re A (Children) [2015] EWCA Civ 133; D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam); Re L (A Child) (Human Fertilisation and Embryology Act 2008: Declaration of Non-parentage) [2016] EWHC 2266 (Fam); and Re N (Human Fertilisation Embryology Act 2008) [2016] EWHC 1329 (Fam).

40  The High Court or the family court: s 55A(1).

41  S 55A(2).

42  S 55A(3) and (4).

43  S 55(A)(5); Re R (A Child) [2003] EWCA Civ 182; [2003] Fam 129 per Hale LJ at [32].

44  As substituted by s 22 of the Family Law Reform Act 1987; and see Family Procedure Rules 2010, rr 8.18, 8.20 and 8.21.

45  See the Matrimonial Causes Act 1973, s 45; and see Motala v A-G [1990] 2 FLR 261; revsd on another point [1992] 1 AC 281, infra, pp 1198–9.

46  Such declarations are still needed notwithstanding the major reforms of the law relating to legitimacy contained in the Family Law Reform Act 1987, infra, p 1194, see Law Com No 118 (1982), para 10.2; Law Com No 157 (1986), para 3.14.

47  See Norrie (1994) 43 ICLQ 757.

48  The High Court or the family court.

49  These may be sought in the alternative: s 56(2).

50  S 58(5)(b) (prohibition of declaration of illegitimacy) has been excised from the Act by virtue of s 83(3) of the Child Support, Pensions and Social Security Act 2000. The reason for this is that the effect of a declaration of parentage under s 55A could be that a child is or was illegitimate, which is inconsistent with s 58(5)(b) as was.

51  S 56(5). Recognition of foreign legitimations is discussed infra, p 1202 et seq.

52  Contrast applications for declaration of parentage under s 55A, discussed, supra, p 1052.

53  S 56(3); and see Law Com No 132 (1984), paras 3.34–3.36; Motala v A-G [1990] 2 FLR 261; revsd on another point [1992] 1 AC 281.

54  Adoption Act 1976, s 38(1)(c); Adoption and Children Act 2002, ss 66(1) and 105–8.

55  Infra, p 1222 et seq; and see Law Com No 132 (1984), para 3.15.

56  The issue of the validity of a foreign adoption has always arisen in the course of other proceedings such as entitlement under a settlement (Re Valentine’s Settlement [1965] Ch 831), a will (Re Marshall [1957] Ch 507), or an intestacy (Re Wilson [1954] Ch 733).

57  Law Com No 132 (1984), paras 3.15–3.16.

58  Infra, p 1222 et seq.

59  See, eg, D v D [2008] EWHC 403 (Fam); Re B (Children) (Foreign Adoption: Refusal of Recognition) [2013] EWHC 1501 (Fam); Z v Z (Recognition of Brazilian Adoption Order) [2013] EWHC 747 (Fam); Re G (Children) (Recognition of Brazilian Adoption) [2014] EWHC 2605 (Fam); and QS v RS [2016] EWHC 2470 (Fam). And see the Family Procedure Rules 2010, rr 8.18, 8.20 and 8.21.

60  The High Court or the family court.

61  For the purposes of s 39 of the Adoption Act 1976, or s 67 of the Adoption and Children Act 2002, in respect of which, see infra, p 1229.

62  These declarations may be sought in the alternative: s 57(1).

63  S 57(1)(a).

64  S 57(1)(b). See, for detailed consideration of adoption, infra, Chapter 27.

65  Re G (Children) (Recognition of Brazilian Adoption) [2014] EWHC 2605 (Fam), at [30].

66  S 57(3).

67  It might also be noted that the power to grant declarations under the Greek Marriages Act 1884 has been abolished as has the right to petition for jactitation of marriage: ss 61, 62: and see Law Com No 132 (1984), paras 4.1–4.13.

68  S 58(5).

69  S 58(4).

70  S 58(3); and see Law Com No 132 (1984), para 3.28. Note, however, the willingness of the courts in the recent years to grant, on the basis of their inherent jurisdiction, other types of declarations as to status, discussed supra p 1050.

71  S 58(3); and see Law Com No 132 (1984), paras 3.24–3.27.

72  Under s 55(1).

73  Ss 56(2), 57(1). As has been mentioned, supra, p 1051, it is also possible to petition for a nullity decree and a declaration of initial validity in the alternative.

74  S 58(2).

75  S 58(1).

76  S 59.

77  Eg Puttick v A-G [1980] Fam 1; D v D [2008] EWHC 403 (Fam), at [17]; and Re G (Children) (Recognition of Brazilian Adoption) [2014] EWHC 2605 (Fam), at [53]–[55].

78  Eg D v D [2008] EWHC 403 (Fam), at [18]–[22]; and Re G (Children) (Recognition of Brazilian Adoption) [2014] EWHC 2605 (Fam), at [46]–[52].

79  S 59(2).

80  S 60; and see Law Com No 132 (1984), paras 3.60–3.63. In the case of declarations of parentage under s 55A, and of parentage and of legitimacy under s 56, if a declaration is made the Registrar General must be notified: Family Law Act 1986, ss 55A(7) and 56(4), respectively.

81  Kassim v Kassim [1962] P 224 at 234.

82  Law Com No 132 (1984), para 3.39.

83  Eg Re B (Children) (Foreign Adoption: Refusal of Recognition) [2013] EWHC 1501 (Fam).

84  Puttick v A-G [1980] Fam 1 at 22.

85  See generally infra, Chapter 25. Also Family Procedure Rules 2010, Part 12.

86  In Scotland, the Court of Session.

87  Though see Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, per Lord Brown of Eaton-under-Heywood, at [79]: the terms of s 8 of the 1985 Act “contemplate and empower [the English court] to make . . . a declaration even before there are any proceedings in, or any request from, a foreign contracting state”.

88  Not only persons having rights of custody or rights of access. Re P (A Minor) (Child Abduction: Declaration) [1995] 1 FLR 831; [1995] Fam Law 398.

89  Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619; Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976; [2005] 2 FLR 1119; Re H (Child Abduction) (Unmarried Father: Rights of Custody) [2003] EWHC 492; [2003] 2 FLR 153; Re G (Abduction: Rights of Custody) [2002] 2 FLR 703; [2002] Fam Law 732 (Fam Div); Re L (Children) (Abduction: Declaration) [2001] FCR 1; Re J (Abduction: Rights of Custody) [1999] 3 FCR 577; Re P (Abduction: Declaration) [1995] 1 FLR 831; Re J (A Minor) (Abduction: Ward of Court) [1989] Fam 85; [1990] Fam Law 177; Re T (Abduction: Rights of Custody) [2008] EWHC 809 (Fam); A v B (Abduction: Rights of Custody: Declaration of Wrongful Removal) [2008] EWHC 2524 (Fam); A v H [2009] EWHC 636 (Fam); and X County Council v B (Abduction: Rights of Custody in the Court) [2009] EWHC 2635 (Fam). See also Re A (Abduction: Declaration of Wrongful Removal) [2002] NI 114.

90  Re P (Diplomatic Immunity: Jurisdiction) [1998] 1 FLR 1026; Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976; [2005] 2 FLR 1119, per Thorpe LJ at [40]–[41] (eg where the question for determination in the requested state turns on a point of autonomous (ie Hague Convention) law); and Dyson LJ, at [50]–[51]; and Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, per Lord Hope of Craighead, at [6]. See also Re A (Abduction: Declaration of Wrongful Removal) [2002] NI 114, per Gillen J at [120].

91  Re F (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, per Thorpe LJ, at [12]. For example, an application under Art 15 is unusual if not unprecedented in Spain and it might well take up to a year to resolve. Kennedy v Kennedy [2009] EWCA Civ 986, per Thorpe LJ, at [3].

92  Eg Kennedy v Kennedy [2009] EWCA Civ 986—instead of seeking an Art 15 declaration, it was pragmatically decided that the extent of the unmarried father’s rights of custody in Spain should be determined as a preliminary issue by a judge in England, guided by expert evidence as to the law of Spain. Ibid, per Thorpe LJ, at [3].

93  Re F (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, per Thorpe LJ, at [12].

94  Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976; [2005] 2 FLR 1119, per Thorpe LJ, at [27]; and Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, per Lord Carswell at [71]; and Lord Brown of Eaton-under-Heywood, at [82]–[83].

95  Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, per Baroness Hale of Richmond, at [43] and [44] (eg where the ruling was obtained by fraud or in breach of the rules of natural justice); Lord Carswell at [71]; and Lord Brown of Eaton-under-Heywood, at [81] (eg where there was a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”). See also Re F (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, per Thorpe LJ, at [12]—in practice, in most cases, a ruling from the court of the requesting State under Art 15 will be determinative of the issue.

96  Cf declarations as to marital status: s 55, Family Law Act 1986. Supra, p 1051.

97  Supra, pp 1051–2.

98  Domicile and Matrimonial Proceedings Act 1973, Sch A1, para 4(a).

99  See supra, p 1051.

100  Domicile and Matrimonial Proceedings Act 1973, Sch A1, para 4(b).

101  A similar discretionary “forum necessitatis” rule in relation to same sex marriage can be found also in the Domicile and Matrimonial Proceedings Act 1973, Sch A1, paras 2(1)(b) (divorce and legal separation); 2(2)(c) (nullity); and 3 (presumption of death), discussed in Chapter 22, pp 1046–7. Cf Civil Partnership Act 2004, ss 221(1)(c), 221(2)(c), and 222, discussed in Chapter 22, pp 1040–2.

102  See Chapter 22, pp 1037–9 (marriage), pp 1041–2 (civil partnership) and p 1047 (same sex marriage).

103  Presumption of Death Act 2013, s 3(2)(b).

104  S 1(3).

105  S 1(4).