“Who is my father? Is this my child?”
These are questions of the utmost importance in any person’s life.
In a judgment handed down today, the Court of Appeal (Sir Andrew McFarlane P, King LJ and Stuart-Smith LJ) concluded that the term “father” in the Children Act 1989 means what it means at common law (save where that definition has been expanded by statute – e.g. in cases of assisted reproduction under the Human Fertilisation and Embryology Acts). At common law, a man is only the “father” of a child if he is the natural/genetic/biological father.
The definition of the term “father” in the Children Act 1989 does not extend to a man who has acted as a child’s psychological or social father. It does not extend to a man who mistakenly thought he was the genetic/biological father, who was registered as “father” on the birth register entry, who thought he shared parental responsibility for the child with the mother, but who subsequently discovers he is not the child’s genetic/biological father.
Nor does it extend to a man who knew he was not the genetic/biological father of a child, was still registered as such on the birth register entry, and who also thought he shared parental responsibility for the child with the mother.
Accordingly, a person has to be a child’s genetic/biological father before they can acquire parental responsibility for a child under section 2 or 4 of the Children Act 1989. An unmarried man will only acquire parental responsibility for a child under section 4(1)(a) and (1A) of the Children Act 1989 if:-
- he is the genetic/biological father of the child; and
- he becomes registered as “father” in the child’s birth register entry.
The fact that a person who is not the genetic/biological father is named in the birth register entry as “father” does not make them the father of the child in law, and that person has never acquired parental responsibility for the child.
However, under section 12(2) and (2A) of the Children Act 1989, a court may grant parental responsibility to an individual, who is neither the parent nor guardian of a child, and who does not otherwise hold parental responsibility, where the court makes a child arrangements order under section 8 of the Children Act 1989.
The court gave guidance on the kind of interim orders that could be made if a court makes a declaration of non-parentage, particularly if there is a risk of child abduction and there is any uncertainty as to paternity.
The court also addressed the more unusual situation where it was not possible to tell which of two identical twins was the biological/genetic father of a child.
The judgment is available here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/344
Joanne Clement KC was instructed by the Secretary of State for Justice and the Registrar General for England and Wales.
