Do you actually have parental responsibility?

A recent landmark ruling from the Court of Appeal has changed the way we look at Parental Responsibility (PR), being the legal right to make decisions about a child’s life. The case of Re J, M, P (Loss of Parental Responsibility) EWCA Civ 344 dealt with a unique and difficult question: what happens to a father’s legal rights when science cannot prove that he is the biological parent? 

In one of the 3 cases (Re P), a child was fathered by one of two identical twin brothers. The mother had been intimate with both twin brothers in the same week. Because their DNA is identical, testing could not confirm which of them was the biological father. One of the twin brothers was named on the birth certificate which usually gives a father automatic PR. 

Sir Andrew McFarlane, President of the Family Division, had to decide if that legal status should stand. The court’s decision was based on one fundamental rule: for the purposes of Children Act 1989, father means biological/genetic father. The definition does not, and cannot, extend to others who have acted as the child’s psychological/social father.

Because it was impossible to prove in this case who was the biological father, the court ruled that the twin named on the birth certificate did not have automatic PR through the birth certificate, even if he believed at the time that he was the father. Simply being on the birth certificate does not create legal fatherhood. However, it was stated that the twin may apply for a Court Order to gain PR by making submissions related to the child’s welfare. 

This ruling is a reminder that PR can be fragile for unmarried fathers if not rooted in biological fact and the court will not take a guess at fatherhood. However, it also shows that a lack of biological proof does not mean that a father’s rights will be erased. While automatic PR rights may be lost, the court may still grant PR based on the child’s best interests and the relationship that has been built between the child and the father. Even in situations where the law may be hindered by unanswered questions, the court’s priority remains clear: the child’s welfare. 

To get more information and/or advice on Parental Responsibility, please contact the experienced family team via our contact page: Contact Us – SE Solicitors. 

The content of this article is a general guide only at the date of publication. It is not comprehensive, and it does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.