Court of Appeal rules on what it means to be “father” of a child under Children Act 1989

Over the course of three days, Sir Andrew McFarlane, King LJ and Stuart-Smith LJ heard three separate appeals, each relating to the attribution of parental responsibility and the status of 'father' with respect to a child.

In two of the cases, the status of an individual who had been registered as 'father' in a child's birth register entry was subsequently challenged.

The two cases raised the following questions:

i) Is the definition of 'father' for the purposes of Children Act 1989 ['CA 1989'] limited to a child's biological/genetic father, or may it extend to others who have acted as the child's psychological/social father?

ii) Where an individual is registered as a child's 'father' in their birth register entry, does parental responsibility attributed by such registration attach to a 'father' who is not, in fact, the biological/genetic father of that child?

iii) If, in response to (ii), parental responsibility is afforded to a non-biological father, is it automatically terminated upon the making of a declaration that the individual is not the child's father under Family Law Act 1986, s 55A ['FLA 1986'], or does the attribution of parental responsibility continue unless and until it is terminated by a separate CA 1989 court order?

iv) If, in response to (iii), a separate court order is required to terminate parental responsibility in such circumstances, is this a decision to be determined by affording paramount consideration to the child's welfare, or on some other basis?

The third case, which also raised the question of parental responsibility attributed following the naming of an individual as 'father' in a birth register entry, had an additional level of complexity arising from the fact that the mother had engaged in sexual intercourse with each of two identical male twins in the course of one week, at the time that conception must have occurred.

As a result, whilst DNA testing established that the child's biological father was one of the twins, it was not possible to say which of them it was.

During the appeal hearing, the appellants, who had been asserting that the definition of the term 'father' in CA 1989 was not limited to the biological/genetic father, abandoned that assertion.

Sir Andrew McFarlane noted: “There was, therefore, an acceptance by all those before the court that the common law definition of 'father' applied, so that only the individual whose sperm has fertilised an ovum so as to create the embryo from which the living child has developed can be regarded, in law, as that child's father ['the genetic father'].”

The Secretary of State for Justice, who has policy responsibility for the relevant parts of the CA 1989, was granted permission to intervene in the appeal by King LJ.

Outlining their central submissions, Sir Andrew McFarlane said: “On the basis that the term 'father' in CA 1989, ss 2 and 4 reflect the common law principle that a child's father is their genetic father, the Secretary of State submits that a person has to be the child's genetic father before they can acquire parental responsibility for a child under ss 2 or 4.

“The fact that a person, who is not the genetic father, is named in the birth register entry as 'father' does not make them the father of the child in law, and that person does not thereby acquire parental responsibility.”

Rejecting all three appeals, the Court of Appeal 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 judges ruled 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 discovered he is not the child’s 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.

However, by a separate route, an individual, who is neither the parent nor guardian of a child, and who does not otherwise hold parental responsibility for the child, may be granted parental responsibility where the court makes a child arrangements order under section 8 of the Children Act 1989.

Sir Andrew McFarlane stated that in order for parental responsibility to be acquired by registration on a birth certificate under CA 1989, s 4, two conditions must each be fulfilled:

a. The person must be the genetic/biological father of the child; and

b. That person must be registered as 'father' in the child's birth register entry;

He added: “Although the parties may believe otherwise, no parental responsibility is acquired at any stage by an individual who is wrongly registered as 'father' in a birth register entry.”

Lady Justice King and Lord Justice Stuart-Smith agreed.

Lottie Winson