Judge rejects application by council for declaration that first respondent was not biological mother

In X & Y (Children), Re (Dispute as to Maternity) [2025] EWFC 475 (B) (22 December 2025), His Honour Judge Willans, who had been asked to reach this conclusion on non-maternity by drawing inferences from the available evidence, was not satisfied the local authority had made out its case on the balance of probabilities.

This was despite the judge being left with “real, not fanciful doubts”.

He concluded: “I am troubled I have not been able to reach a conclusion with absolute confidence in this regard. I would urge the mother to engage in DNA testing to put the issue to rest for the sake of the children's emotional wellbeing.”

The judge added that he was “satisfied the children's welfare is only consistent with the making of a care order with a plan of long-term foster care.”

The local authority had sought a declaration that the mother was not the children’s birth mother. The guardian had leaned against such a finding.

The council's application arose from concerns about the mother’s refusal to undergo DNA testing, inconsistencies in her accounts of the children’s births and early lives, and statements made by the children themselves questioning her maternity.

The children were confirmed to be full biological siblings. Their father had not been traced and played no part in the proceedings.

HHJ Willans said: "It is not possible to provide a background to this case with a level of confidence I would like to have. There is much in this case which remains unclear. This is because the mother has either been unable or unwilling to shed full light on the background circumstances. This underlies the argument as to maternity with multiple conflicting and inconsistent accounts having been provided. Further, the mother has at times provided accounts which appear wholly inconsistent with known facts. At other times she has been unable to provide answers to basic questions, e.g. how old are you?

"This leaves me with some real challenges around the essentials of the account given by the mother. She has spoken of being a victim of domestic abuse (although her account around this subject has not been entirely consistent) but there is little by way of objective and independent evidence to support the account. The professionals have proceeded on the basis the allegation of such victimhood is true. The truth of the same may offer some explanation in part to the mother's idiosyncratic approach, but it does not materially impact on the decisions I make. For my assessment, I have accepted the essential allegation of being a victim of domestic abuse. I have not been required to make specific findings."

The case history began in 2017, when the children’s undoubted biological mother (BM) presented at a London hospital while pregnant, reporting domestic abuse and coercive behaviour by her husband. Her account included moving between the jurisdiction of England and Wales and the Republic of Ireland. The account was sufficient to raise a safeguarding concern shared with the local authority. 

Shortly after, the BM became a missing person as the accommodation details provided by her appeared to be false. She was later located in the Republic of Ireland (ROI), where she gave birth to X, and came under the involvement of Irish social services (TUSLA).

Records from 2017–2018 cited ongoing concerns about domestic abuse. The biological mother returned to England in early 2018 and had brief involvement with another London local authority.

There was a substantial evidential gap between 2018 and 2023. However, it was known that the BM returned to ROI where Y was born in 2019.

Turning to 2023 onwards, the judge said: “The history then commences with the mother [the first respondent] with both children in London. Initial contact is with [another London borough] in around September 2023. Her account is that she had fled domestic abuse from her husband in around July 2023. At that point in time X was nearing 6 years of age but had not entered schooling. The report was that the mother was avoidant of engagement with social work support and there were housing issues (the mother had been deemed intentionally homeless after refusing a housing offer).”

HHJ Willans said a plan was agreed around safeguarding and housing and accessing education. In January 2024 a housing application was withdrawn due to lack of contact. The mother had not attended a child in need meeting, and a lack of proactivity and engagement was noted.

In early 2024, there were concerns following a hospital admission for Y with a burn injury.

"A further strategy meeting was held which noted multiple addresses, a lack of medical registration, continued lack of educational registration and housing concerns," the judge said.

"There was a developing concern that the mother was seeking to avoid professional engagement for reasons unknown. There was a follow up home visit at the end of April 2024 with limited access to the home being granted. A section 47 investigation commenced. This concluded the children were living in the jurisdiction of the LA (having moved into the maternal grandmother's home) and the case was transferred."

After the family moved to the applicant London borough to live in the maternal grandmother's home, concerns arose about whether a brother with a previous diagnosis of paranoid schizophrenia and resistance to treatment had been left to care for the children.

Following a visit in June 2024, further attempted visits were not successful. "The concerns were as to the children continuing to be out of education, the children having language delays without any support, poor engagement with health, concerns around domestic abuse, financial challenges, living with family with concerns around associated mental health needs. It was noted all these concerns could be addressed if there were an appropriate level of engagement but to date this had not happened. The decision was taken to progress the matter to a Child Protection Conference. Pursuant to this a home visit was achieved in July 2024 but engagement was felt to be continuing at a poor level."

A child protection conference followed in August 2024 and reached the conclusion that the threshold for significant harm was met under the category of neglect. A plan for support was set out, and the case was to be reviewed in late October 2024.

However, during this period contact remained challenging, and concerns arose as to whether the mother might be back in contact with the father, the judge said.

In November 2024 the children were placed into police protection following attendance at their home.

The judge said: “It appears the police attended following concerns relating to the location of the maternal grandmother. During their visit they were concerned as to the mother's evasiveness, the state of the accommodation and the children.

“There was a troubling standoff in which the police were seeking to establish where the children were with the mother saying they were safe and implicitly suggesting they were elsewhere. This ended when a police officer discovered the children in the property. The situation was then not helped by the children in part denying the fact the mother was their mother.”

In May 2025, the local authority raised formal concerns about maternity and sought DNA testing. The mother refused – referencing “religious advice” that she had received.

The judge said: “I find it troubling that this matter remains unclear when absolute clarity could have been obtained by a simple DNA test. I am not satisfied by the mother's grounds for refusing the same. In evidence she references religious advice she had received as to the taking of the test.

"I was not persuaded by this account for three reasons; (1) I do not accept it is a tenet of the mother's religion that she cannot undertake DNA testing. I am not sure she claimed this to be the case. My sense was that she was simply accepting advice, if this is true, from an individual within her religious community; (2) In any event the statement evidence is quite clear that the mother formulated a view oppositional to testing prior to the time at which she claims to have received contrary religious advice; (3) There is no doubt the mother understands the significance of this issue and the complication that her refusal is posing for the Court. I took her through this with care and left her the opportunity to modify her position – she chose not to.”

HHJ Willans said he accepted that the local authority had properly placed the matter before the Court. "They have not done so lightly and did not raise the issue until the developing evidence reached a point where it could not be ignored. The conduct of the mother since has increased their concerns. In my assessment the LA are not looking for this answer and would welcome confirmation that the mother is the children's birth mother. But they are now left in the unenvious position of managing this situation in a position of uncertainty with children who are crying out for clarity."

The judge accepted that the test to be applied is the balance of probabilities. "But this does not mean the Court should not be looking for credible evidence on which to build a conclusion. It is troubling that I am left to reach conclusions based largely on inferences. I am mindful of the potential for me to reach a conclusion as sought by the LA; for the children to be informed and for the mother to then engage in testing and provide confirmation to the contrary. I cannot begin to imagine the emotional harm such a changing landscape would cause to the children. Further to effectively rob the children of a mother on inferences alone is a matter to cause real reflection."

The judge “drew an inference from the mother's refusal to undertake testing”, but emphasised the need for caution. He identified numerous inconsistencies in the mother’s accounts, including inaccurate descriptions of the children’s births and early medical history.

However, the judge also identified a number of small features linking the mother to the earlier documented history of the biological mother, including shared personal details, characteristics, and experiences recorded years earlier.

He said: “In summary there are some very troubling question marks over the status of the mother. She has significantly contributed to the doubts that arise and indeed has done so in such a manner as to cause positive harm to the children. Yet I am persuaded she bears both the name and date of birth of the BM and that she has not perpetuated identity theft in this regard given the ability to trace this back to her childhood via PNC records.

“Further, she has, despite her problematic narrative, given details which chime with the accepted account of the BM. I cannot see that this was done for strategic purposes, indeed none of these points were advanced by her during the hearing with the aim of persuading me. They have simply been found in the evidence. Finally, there is no obvious alternative history that might have been expected had the mother at some point between 2018 and 2023 removed the children from a BM.”

Concluding the case in relation to non-maternity, the judge said: “Having regard to the above I am not satisfied the LA has made out its case as to non-maternity. I therefore do not make the declaration sought. Yet I am left with real, not fanciful doubts, and I am conscious that whilst this assessment of the evidence may give the LA comfort it is likely to be lost on the children who will want a simple answer. I also appreciate this balanced decision is susceptible to future developments in evidence. The answer remains the obvious solution of testing to provide absolute confidence to the children. I continue to urge the mother to engage.”

Conducting a welfare analysis, the judge found that the threshold criteria were met – acknowledging that the children had suffered “neglect leading to significant harm” and “an absence of peer group engagement through schooling”.

He said: “Without urgent action the children's lives risk being blighted. Their physical care is poorly understood but what is known is concerning. They have lived a transient life, and their accommodation has been problematic. There is evidence of efforts to rectify this situation which have not been accepted by the mother. Importantly, their emotional needs have not been adequately met as set out in the threshold. There emotional needs demand an answer to the DNA question. They demand a clear historical narrative to understand who they are. They demand these issues to be treated with the importance they deserve by their mother. Whilst this is delayed they are losing trust in her. The longer this is delayed the harder it will be to rebuild.”

His Honour Judge Willans made final care orders with a plan for long-term foster care.

Concluding the case, he said: “I am satisfied the threshold in this case is crossed notwithstanding my dismissal of the application re non-maternity.

“I am further satisfied the welfare of the children demands the making of a care order with a plan for long term foster care. At this point in time the mother is not placed to provide the children with good enough care.”

Lottie Winson