Ben Butler summarises the key points in the recent case of Re J, the central issue of which being Parental Responsibility being obtained by an unmarried father by way of being named on the child’s birth certificate.
Judgement was handed down in this case where the central issue to each was parental responsibility being obtained by an unmarried father by way of being named on the child’s birth certificate.
Re J – Both parties at the time of registering the person as the ‘father’ genuinely believed that the individual was the biological father of the child.
Re M – Both parties had known that the individual named as ‘father’ was not the biological father to the child.
Re P – it was not possible to determine which of the two identical twin brothers were the biological father meaning no name could be placed on the birth certificate.
Any reference to ‘F’ in the below is for ease of identification of the parties.
Re J, M-S-K-B & P [2026] EWCA Civ 344 (Parental Responsibility): Re J
M at the time of the child’s birth, told F that he was the biological father to the child. Subsequently, when their relationship broke down, M informed F he may not be the biological father. DNA testing took place and F was found to not be the father.
The matter came to court where Powell KC, sitting as a deputy high court judge, determined that as F was not the father, he was not eligible to be registered as father in the child’s birth register. No legal or practical difficulty had been identified in holding that a false, but genuine, understanding that an individual had held PR was void ab initio.
F therefore never acquired PR upon being named as the child’s father.
Re J, M-S-K-B & P [2026] EWCA Civ 344 (Parental Responsibility): Re M
The child was conceived after M and F purchased sperm over the internet from an anonymous donor. As this was not a licensed fertility clinic, F did not gain legal status properly as a result of using donor sperm. F contended that he was always intended to be the child’s father. Subsequent DNA testing confirmed F was not the biological father to the child.
The LA issued applications for care orders with respect to the child and her half-siblings. The LA sought a declaration from the court that F was not the child’s father. The LA also sought an order terminating PR of F.
In their judgement, HHJ Tucker, sitting as a deputy high court judge, made a declaration that F was not the father. She held that given the legal definition, F did not meet those requirements.
Re J, M-S-K-B & P [2026] EWCA Civ 344 (Parental Responsibility): Re P
There were twin brothers who M could not identify as the father to the child as they both had sex with M in the week she fell pregnant.
Within private law proceedings, after a full hearing and consideration of the DNA evidence, it was not possible to establish the paternity of the child, other than to say that the father is one or other of the two identical twin brothers.
F1 had been named on the birth registry entry and the court was asked whether it was possible to confer parental responsibility on either F1 or F2. M and F2 had grown closer and sought for F2 to be given PR. F1 sought to obtain his entry and to be treated by law as the child’s father. The guardian sought that neither twin was established to be the child’s father.
HHJ Reardon gave judgment to say that given no party could prove on the balance of probability which F was the father, the court could not make such a declaration of parentage.
Analysis of Re J, M-S-K-B & P [2026] EWCA Civ 344 (Parental Responsibility)
It was accepted by all parties that the definition of father as found in the Children Act 1989 ss 2 and 4 reflects that a person has to be the child’s genetic father before they can acquire PR for a child under ss 2 or 4. The fact that a person who is not the genetic father is named in the birth registry as ‘father; does not make them the father of the child in law, and that person does not thereby acquire PR [62].
The court makes the following conclusions [80]:
- The definition of ‘father’ for the purposes of CA 1989 is the common law definition and is limited to a child’s biological/genetic father. The definition does not, and cannot, extend to others who have acted as the child’s psychological/social father.
- Where an individual is registered as a child’s ‘father’ in their birth register entry, the parental responsibility attributed by such registration does not attach to that individual if they are not, in fact, the biological/genetic father of the child. 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;
- 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. In consequence the question of whether parental responsibility in such circumstances is automatically terminated on the making of a declaration of non-parentage under FLA 1986, s 55A, or requires a bespoke order, simply does not arise.
The court therefore refused the appeals on behalf of Re M and Re J. A question remained in Re P, in that whether any PR F1 may have acquired under s.4(1) by registration as ‘father’ in the child’s birth registry entry shall cease.
One final conclusion from Re P is that F1 was named on the birth registry. It was submitted on behalf of G that as F1 could not be proved to be the child’s father, the court should declare that he was not her father [91].
The court stated that the failure to provide a fact means that that fact is nor proved, it does not mean that the contrary is proved. There is a distinction between something being not proven, and making a positive declaration that the fact asserted is not true [92].
Essentially, the fact that there is a 50% chance that F1 is the child’s father it is not possible to say that he is not her father.
Ben Butler is a family law barrister at Westgate Chambers, specialising in private children matters, domestic abuse, injunctions, and family finance, and is regularly instructed across all stages of proceedings. If you would like to instruct Ben, please contact our clerking team today.