What does being a father mean?

The Court of Appeal was recently seized of three cases in which the same core issue arose – the implications when a father named on a birth certificate is not, in fact, the biological/genetic parent of the child.  

Background 

The factual contexts of the three conjoined cases were as follows:

Re J: The man named on J’s birth certificate (AJ) had been in a relationship with J’s mother and believed he was J’s Father until post-separation DNA testing established another man was J’s biological father.  A declaration of non-paternity was made. AJ argued that he had acquired parental responsibility by being named on J’s birth certificate and such could only be removed by the court making an order pursuant to s.4(2A) Children Act 1989. He further argued that in deciding whether to make an order under S.4(2A), the court was required to afford paramount consideration to J’s welfare (pursuant to s.1(1)). At first instance this argument was rejected, and the court found because AJ was not J’s biological father he had never validly acquired parental responsibility. 

Re M: M was conceived after his mother and AM purchased sperm online.  AM was named on M’s birth certificate as his father and claimed he had not realised that by not going through the channel of using a licensed fertility clinic, he did not have legal status in relation to M.  A declaration of non-parentage was made, and the court found that as AM was not M’s biological father he had never acquired parental responsibility in accordance with s.4(1).

Re P:  It was not possible to establish the paternity of P, other than to say that the father was one or other of two identical twin brothers – TP1 and TP2. TP1 was named as father on P’s birth certificate, however the mother was now in a relationship with TP2.  Both potential fathers sought to have parental responsibility.  The court determined it was unable to make any declaration under 55A as it was impossible to make any positive findings on the balance of probabilities as to P’s paternity.  This left P’s birth certificate unchanged. 

Decision

The issues arising for the Court of Appeal were:

1. Whether the definition of ‘father’ for the purposes of Children Act 1989 was limited to a child’s genetic father, or could it extend to others such as psychological father.

1. Does naming an individual as ‘father’ on a child’s birth certificate result in parental responsibility being obtained regardless of whether that individual is the genetic parent. If parental responsibility is obtained, is it automatically terminated when a declaration of non-parentage is made, or does the parental responsibility continue until terminated by a separate order under the Children Act 1989. 

McFarlane P provided the lead judgment and found that the definition of ‘father’ at common law is confined to the genetic/biological father.  When using the term ‘father’ in the Children Act 1989 there was no indication parliament intended for it to have a meaning in any way different from the common law meaning.   If an individual is named as ‘father’ on a birth certificate is not the biological father then then they never acquired parental responsibility under s.4(1) as that required both (i) the person must be the genetic/biological father, and (ii) that the person be registered as ‘father’ in the child’s birth register entry.  Therefore “no parental responsibility is required at any stage by an individual who is wrongly registered as ‘father’ in a birth register entry” [para 80]

This analysis meant that the decisions in Re J and  Re M were upheld.  In Re P, having heard submissions form the Registrar General, the Court of Appeal concluded that it was unable to declare TP1 was not P’s father – “the failure to prove a fact means the fact is not proved, it does not mean that the contrary is proved”.  TP1 would therefore remain the registered father.  However, pursuant to s.4(2A), the Court of Appeal discharged any parental responsibility TP1 acquired on the basis that (i) TP1 should not have been registered as ‘father’ and he is not a candidate for the acquisition of parental responsibility under s.4(1), and (ii) it is plainly not in P’s welfare interests for the ambiguity as to parental responsibility to continue. 

Implications

This judgment, whilst provided much needed clarity, also raises numerous questions.  For example, how should the court recognise the role of a psychological or social parent? McFarlane P suggests the making of a s.8 order, together with the attribution for parental responsibility by an order under s.12, is the appropriate remedy in such circumstances.  Whilst this resolves the issue of decision making by the psychological parent during a child’s minority, it could be argued to undermine the role of a psychological or social parent as it doesn’t create the lifetime legal family ties (including inheritance rights) that other non-biological parents can attain (such as adoptive parents, or non-biological parents who obtain parental status through the provisions of HFEA 2008).

The decision also means that many non-biological parents who have been wrongly registered on a child’s birth certificate, have been and will continue to be, making unlawful decisions under the guise of exercising their ‘parental responsibility’.  These decisions could include schooling decisions and matters of serious medication treatment – what will the implications be in such cases? 

On a practical level, practitioners should be cognisant of the potential for an abduction ’gap’ that this judgment raises – where a child has been removed or retained abroad in circumstances in which would be wrongful under the Hague Convention, but the left behind ‘parent’ is discovered not to be a biological parent and consequently never had parental responsibility. To attempt to bridge this gap, the Court of Appeal recommends that in any case where there is uncertainty as to paternity and a risk of abduction, or when the court makes a declaration of non-parentage, consideration should be given to s.8 orders controlling the child’s departure for the jurisdiction, and if justified on the facts an order for parental responsibility under s.12.