Mistaken registration as father - does it confer PR?

As an advocate, you don’t always get to argue the position which you believe to be right.  Happily, in ED v MG [ 2025] EWHC1876 (Fam) I thought I was on the right side of the legal argument. More happily still, McKendrick J agreed.

The point in issue was the effect of a person being mistakenly named as the father on a birth certificate.  Does the registration, even though mistaken, have the effect of conferring parental responsibility on the person named as the father under section 4(1)(a) of the Children Act 1989?; and is it therefore necessary for the court to make an order removing that parental responsibility under section 4(2A) of that Act?

The point had previously been addressed by circuit judges and by deputy high court judges, but a range of differing conclusions were reached.  ED v MG being a decision of a high court judge provides a more definitive view, pending the point being determined by the Court of Appeal.

In Re SB [2022] EWFC 11, HHJ Case held that a man mistakenly registered as the father had acquired parental responsibility, and that parental responsibility is not automatically discharged upon the making of a declaration of non-parentage. Parental responsibility could only be discharged by an order s.4(2A) of the Children Act 1989, which required a welfare analysis. 

The decision of HHJ Moradifar, sitting as a deputy High Court Judge, in Re C and another (Children) [2023] EWHC 516 (Fam), [2023] Fam 230, was influenced by HHJ Case’s analysis, but did not follow it completely.  The Judge held that a man’s acquisition of parental responsibility through s 4(1)(a) Children Act 1989 is based on a rebuttable presumption (from the registration) that he is the biological father. Once the presumption is rebutted, the foundation for acquisition of parental responsibility is displaced. He agreed with HHJ Case said that parental responsibility can only be lost by court order, as required by s 4(2A).   However, HHJ Moradifar considered that in those circumstances such an order would be automatic, and would not require a welfare analysis   He considered that it would be contrary to public policy and parliamentary intention to conclude that parental responsibility would cease ab initio without an s 4 (2A) order, since that would threaten the legality of earlier exercises of parental responsibility made in good faith.

In Re SB (No.2) [2023] EWFC 58 B, a second decision in Re SB [2022] EWFC 111, HHJ Case agreed with HHJ Moradifar's conclusion that it would be contrary to public policy and the intentions of Parliament for a person’s parental responsibility to cease ab initio on a declaration of non-parentage, and that a separate specific order was required under s.4(2A) to terminate parental responsibility.  However HHJ Case maintained her earlier view that a welfare analysis was required before making an order discharging parental responsibility, and on the facts she did discharge parental responsibility. 

In M v F (Parental responsibility of a non biological father) [2024] EWFC 377 (B) (Fam) HHJ Afzal considered the judgements of both HHJ Case and HHJ Moradifar, and preferred  HHJ Case’s view, that an order under section 4(2A) required a welfare analysis, before parental responsibility acquired through mistaken registration was discharged.  On the facts of the case before him, HHJ Afzal declined to discharge parental responsibility with the effect that parental responsibility conferred by reason of a mistake, continued to subsist even when the mistake was discovered. 

In KL v BA (Parental Responsibility) [2025] EWHC 102 Ms Debra Powell KC sitting as a deputy high court judge reviewed the conflicting decisions. She held that when the applicant was mistakenly registered as the father on the birth certificate as the father, he did not acquire parental responsibility pursuant to s.4(1)(a) of the Children Act 1989 and therefore he had never held parental responsibility.  It was therefore unnecessary to make an order under section 4(2A) to discharge it.  She was unpersuaded that there was any real issue about the legality of purported exercises of parental responsibility prior discovery that registration was erroneous. 

Against this background, in ED v MG [ 2025] EWHC1876 (Fam) McKendrick J had to pick his way through the conflicting cases.  In that case the child was conceived by anonymous artificial insemination by donor in a clinic overseas.  The mother’s partner was not therefore regarded as the father under the Human Fertilisation and Embryology Act 2008.  Nonetheless he was registered as such. 

The judge found the the statute had not conferred parental responsibility because the necessary terms of the 1989 Act had not been met: a father obtains parental responsibility pursuant to sub-section 4 (1) (a) of the 1989 Act if he is named on the birth certificate. A person who is not a father does not obtain parental responsibility when they are named on a birth certificate. Thus he agreed with Ms Debra Powell KC in KL v BA that on the natural and ordinary meaning of the words used in s.4(1)(a), only the natural or legal father of a child gets parental responsibility through registration as the father. 

That seems me to be plainly right, but we shall see.   KL v BA has been appealed, with argument scheduled for November.   Tim Bowe KC of chambers is instructed for the lead respondent seeking to uphold the reasoning Ms Debra Powell KC and McKendrick J, so watch this space …