Re M, Re, J and Re P Neutral Citation Number: [2026] EWCA Civ 344
The court heard three separate appeals, each relating to the attribution of parental responsibility and the status of ‘father’ with respect to a child. For me the most interesting and knotty was the third appeal in respect of Re P so I have reversed the order and dealt with that case first.
The questions posed for the SC (paragraph 2)
The Re M and Re J cases raised the following basic 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?
The short answer is no.
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?
Again, the short answer is no.
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?
And another short answer – it was never acquired notwithstanding the entry on the birth of certificate.
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?
And in light of (iii) the answer is no.
“The third case, which, in common with the first two, 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 establishes that the child’s
biological father is one of these twins, it is not possible to say which of them it
is.”
In this case the decision was to make an order termination parental responsibility as it could not be said he was not the father; which would be a pre-requisite for removal from the register.
Re P: the factual context
In the third case, P was the elder of two children before the court in private law proceedings at the time of the child’s birth the mother had been in a relationship with TP1 (who was a twin of TP2); and TP1 was registered on the birth certificate as her father.. When the relationship between M and TP1 broke down the question arose as to which of the brothers was the biological father the court having found that as they had each engaged in sexual intercourse with the mother within a four day period in the. month that P was conceived. The DNA showed that each of them could be the father, court unsurprisingly found that there was a 50/50 chance of each of the brothers being her father. The court at first instance left the issue of parental responsibility to the higher court aware of pending appeals on the issue.
On appeal to the CA the mother was aligned with TP2, the court at first instance had made orders that shared the care of P between the 3 adults; but had decided that could not conclude that the registration of TP1 as the father was wrong.
The CA found that “whilst the position that has been reached means that TP1 will remain as ‘father ‘in the birth register entry, the question of the continuation of parental responsibility is a separate issue. The court retains the power to terminate any parental responsibility that has been acquired, or in this case may have been acquired, by s 4(1), by making an order discharging parental responsibility under s 4(2A).”
At paragraph 96 the court said “the situation resulting from the judge’s order and this court’s determination on the principal issue is that if TP1 is the legal father he has parental responsibility, but if he is not he does not, yet it cannot be said whether he is or is not the legal. father. That outcome is not in P’s best interests and is contrary to her overall welfare. It is understandable that the judge left the disentanglement of the legal issue to this court (when it was known that the other appeals were to be heard). With the benefit of the hindsight now achieved as to the definition of father, in my view it was wrong for the court not to achieve clarity by discharging any parental responsibility that TP1 may have had by making an order under CA 1989, s 4(2A). The basis for discharging parental responsibility is, firstly, that, as he is not proved to be the father, TP1 should not have been registered as ‘father’ and he is not a candidate for the acquisition of parental responsibility under s 4(1). Secondly, it is plainly not in P’s welfare interests for this ambiguity as to parental responsibility to continue an order will be made under CA 1989, s 4(2A) that any. parental responsibility that TP1 may have acquired under s 4(1) by registration as ‘father’ in P’s birth register entry shall cease from the date of this court’s order and any further order that may be made following additional submissions in that case relating to ‘welfare’.
In the other two of cases, the status of an individual who had been registered as ‘father’ in a child’s birth register entry was subsequently challenged. In one case the genuine assumption that the individual was the biological father of the child was found to be wrong, in the other it had always been known that he was not the biological father, but in both cases the individuals had acted as a psychological or social father to the child and both did so believing that they shared parental responsibility with the child’s mother as a result of being registered as ‘father’ on the birth register entry.”
Re J
In the first case where the named father believed he was the natural father the court found that (paragraph 34) (b) as AJ was not J’s father, he was not eligible to be registered as ‘father’ in J’s birth register entry;
c) No legal or practical difficulty had been identified in holding that a false, but genuine, understanding that an individual had held parental responsibility was void ab initio. In particular, any parental acts undertaken by such an individual would legitimately come within the authorisation provided by CA 1989, s 3(5);
d) AJ did not, therefore, acquire parental responsibility upon being named as J’s father in the birth register entry and, consequently, he has never held parental responsibility for J;
e) Accordingly, no order was required to remove parental
responsibility from him.
Re M
In the second case the father new he was not the father as the parents had bought sperm on the internet as a consequence; he was not afforded the same status as he would have been if using a licenced clinic. Though the legal process was slightly different in that the mother had applied for a declaration of non-paternity; the court held that as a result of the declaration of non-paternity, any parental responsibility that AM had held for M would be lost. In the alternative, on the facts and applying the welfare principle, if an order under s 4(2A) removing parental responsibility was required, she would have made such an order.
The conclusion of the court (paragraph 80) was “referring to the list of questions posed in paragraph 2 above:
i) 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.
ii) 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;
iii + iv) 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.
My Observations:-
Many of us have had cases where we have just followed what was said on the birth certificate and I suspect not applied our minds to the implications of when a named father is not the biological father; or whether we needed to know the answer to that question.
Should we now routinely ask the question of parents – “do you have any reason to believe that the person named as father on the birth certificate is not the biological father?”
Are we duty bound to seek the legal truth or let sleeping dogs lie? In each of the cases the implication for the children is far from satisfactory with poor “P” in the worst position of all.
In my opinion it would be wrong to proceed on the basis of the registration as father on the birth certificate as conferring parental responsibility if the issue of paternity is seriously raised by either parent.
Jo Ashwell
