Charles Russell Speechlys' family team in the Court of Appeal on the meaning of "father"

Judgment is awaited following the Court of Appeal hearing this time last week regarding three conjoined appeals (1) Re: J (a child) (2) Re: M-S-K-B (children) (3) Re: P (children) - Courts and Tribunals Judiciary.  All three cases were concerned with what is meant by the word “father” in the Children Act 1989.  

The court looked particularly at the question of the position of a “father” who has, on the face of it, acquired parental responsibility for a child either by virtue of being (i) an unmarried father named on the child’s birth certificate or (ii) a married father, but in either case subsequently discovers he is not – or cannot be proved to be – the genetic father. 

The central question for the Court of Appeal is whether in such circumstances the “father” loses parental responsibility or not and, if so, whether in fact he never had parental responsibility on the basis that he could only have acquired that in the first place if he were the genetic father. The court heard arguments as to whether it made any difference if the “father” knew that he was not the genetic father, or reasonably believed that he was. 

The cases give rise to a number of very difficult issues, for example:

1. International Child Abduction considerations: If the “father” never had parental responsibility, then the rights he thought he had to protect his child could in effect disappear before the court would have the chance to put appropriate measures in place to rectify the situation. The impact of this may be most stark in a child abduction case. Under the Hague Convention on the Civil Aspects of International Child Abduction, a party can only bring a case for the return of a child who has been abducted or wrongfully retained abroad if that was done in breach of the parent’s rights of custody.  If a “father” never in fact had parental responsibility he would be unable to make such an application. Submissions made on behalf of Reunite made it clear that this is a real issue for many and one that they are often contacted about on their advice lines.
2. Paternal identification: If entry on the birth certificate, or a parental responsibility agreement, does not confer parental responsibility on someone who is not a genetic father, there are real questions as to how this can be addressed comprehensively and sensitively. One possibility might be for information to be provided at registration of the birth or on the parental responsibility agreement, to explain that these documents do not work to confer parental responsibility if the father is not the genetic father. However, it is difficult to see how this could be effectively policed given that the only route to certainty would be to undertake DNA testing at the time.
3. Ongoing involvement in a child’s life: Particularly where a discovery is made that the “father” is not a genetic father after some years of involvement in a child’s life, the question was also raised about what framework should be in place to ensure such a “father” can play an ongoing role in the lives of the relevant children.  The Court of Appeal has been asked to give guidance on this point.

In the case in which our firm was acting pro bono (Re P (children)) the issue was further complicated by its unique facts; it was impossible to tell which of two identical twins was the genetic father. One of the twins was registered by the mother as the father on the birth certificate (F1), but the other identical twin (F2) applied for a declaration of non-parentage of F1. Given there was a 50/50 chance that F1 was in fact the father, the Judge at first instance refused to make such a declaration. F2 appealed and wants F1 to be removed from the birth certificate. Arguments were also put forward on behalf of the Registrar General. 

Whilst the three conjoined cases all raise important legal issues that require careful consideration with potentially wide-reaching implications, it must be remembered that at the centre of each case were children who needed the law to protect their interests. All the lawyers involved in the three cases were mindful of this and of the repercussions of the court’s decision for other children.  Judgment is expected in the New Year.