Who’s the Daddy? What is the legal definition of “father”
Who’s the daddy? Recent decisions involving the definition of a father and the acquisition of parental responsibility have hit the legal headlines.
A recent trio of cases (all linked together as M v F) heard in the Court of Appeal (reported upon together as they were about similar subject matter) closely examined the link between “father” and “parental responsibility”.
Fathers and Parental Responsibility
Generally, people now presume that a man named on a birth certificate is both the father of the child and also shares parental responsibility for the child as a result of that registration. These three cases conclude that it not always a legally correct assumption.
It’s not always accurate that the named father on the birth certificate is the birth/biological parent of a child. This can be due to mistake, deception or other reasons.
We also know that there can be a world of difference between a biological father and the person who raises you and fulfils the role of ‘dad’ day-to-day (and that can be true whether the biological father is in the picture or not).
These cases raised some interesting questions around the definition of father and parental responsibility which, in short were:
- Can a “father” be more than the biological father (per the Children Act definition)
- If a non-biological father is named on the birth certificate, does that give them parental responsibility automatically?
- If the answer to 2 is “yes” does that parental responsibility continue even if there is a declaration that the person is not the father without a separate order to remove that parental responsibility.
- If yes, a separate order is needed to remove the parental responsibility, do other factors like their role as the psychological parent perhaps, still need to be taken into consideration?
The cases themselves were interesting for a variety of reasons too including that in one of them identical twins were both possibly the biological father but no one could be absolutely certain which twin it was. In the end, it was accepted that the “common law” definition of a father (ie the person whose sperm fertilised the egg) was correct although that doesn’t seem to have actually solved the genetic mystery in itself!
Definition of “father” in law
So, the “common law” definition remains that it is the genetic/biological father who is the “father”, sometimes referred to as the “natural” father too.
Before 1987 the father of a child born outside a marriage did not automatically have legal parental “rights” under any statute/act of parliament (this was before the concept of parental responsibility was brought in with the 1989 Children Act). There also continued the presumption that a child born within a marriage was the child of the father (unless proven otherwise).
And this is all before we get to fertility treatment, adoption and surrogacy issues around parentage. Under legal provisions, the non-biological father may be “treated as the father of the child” in law, but that doesn’t change the common law definition of the genetic father.
The concept of a “natural” parent extending beyond the genetic parents, was examined by Lady Hale in 2006 in a case where there were two female parents, one who was the biological and gestational mother and the other who was the social and psychological parent. Obviously, throughout human history there have been social and psychological parents for many reasons as well as the biological ones but this was the first time it had been considered in detail in modern English law. It did not change the common law definition of a father though.
Parental responsibility in law
Parental responsibility itself was introduced in 1989’s Children Act as mentioned above setting out all of the “rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property”. It’s still quite a woolly term sometimes because lawyers will then advise parents that it’s not about their rights to see the child but rather the child’s rights for that relationship to occur.
Initially, post 1989, both parents had parental responsibility if they were married at the time of the child’s birth or subsequently married one another. Unmarried fathers could initially only acquire parental responsibility by a later court order or formal agreement (written and signed) with the mother. This was later amended to provide that fathers registered on the birth certificate shared parental responsibility with the mother even if they were not married (or in a civil partnership when that law caught up too). This still referred to “father” in the genetic sense though.
Court orders made under the Children Act can extend the pool of people who hold parental responsibility for a child beyond the mother or father though too. Even the Local Authorities can hold parental responsibility for a child in their care. Regardless of whether you hold parental responsibility or not for a child in your care, you are still obliged to look after them properly of course!
Recent cases
So onto the cases themselves. Three sets of parents (ie those with their names on the birth certificates): MJ and AJ (mum and “dad”), MM and AM, and MP and TP1 and TP2 (the twins).
MJ and AJ
When the child was 2, it transpired that AJ was not the child’s biological father although AJ made clear he wishes to continue in the role he believed he already held of dad to the child. The biological father was not involved. AJ then sought an order for parental responsibility for the child. MJ (mother) sought a declaration of “non-parentage” against AJ. AJ accepted the non-parentage.
The first judge ruled that AJ had not acquired parental responsibility for the child just by being registered as his father because he was not the biological father. Arrangements for AJ to spend time with the child were not considered within this particular element of the dispute between MJ and AJ.
MM and AM
The child was conceived using anonymous sperm purchased on the internet. AM did not realise that he hadn’t acquired any legal status because (as the law requires this step) they hadn’t used the formal clinic approach to insemination. AM was still registered on the child’s birth certificate and AM and MM were married 2 years later.
Sadly, this was a case where the children were involved with the local authority as well. That was where the lack of biological connection to AM was revealed, but it was determined by the first judge that the local authority didn’t need a specific order to remove AM’s “parental responsibility” as he’d never held it in the first place.
MP and TP1 & TP2
In this case, it was not possible to identify which “father” was the biological father due to TP1 and TP2 being twins. TP1 was named on the birth certificate (and was the father of the older sibling) but the question was raised as to whether TP1 or TP2 held parental responsibility for the child.
MP (mother) was aligned with TP2 by the time of the hearing and they both wanted parental responsibility for TP2 along with a declaration of parentage (TP2) and termination of any parental responsibility for TP1. A guardian for the child supported the ending of parental responsibility for TP1 and awarding of parental responsibility for TP2.
The first judge refused all applications as it was not possible for the court to determine who was the biological father but recognised this meant the child’s birth certificate would have to stay as was (TP1 as father). There were then orders for the child to spend time with all three adults and made clear MP would be able to make the sole parental responsibility decisions for the child (such as to schooling or leaving the jurisdiction) although both TP1 and TP2 had to provide reasonable care for the child regardless of that.
Expert input
By the time the cases reached the appeal court the Secretary for State was also involved. The Secretary’s position was that a person had to be the child’s genetic parent to acquire parental responsibility for that child under the relevant parts of the Children Act. Entry on the birth certificate alone should not lead to parental responsibility being held by a non-genetic father.
The Registrar General was also added into the mix as was the Association of Lawyers for Children. The Registrar General’s position (ref to the twin case) was that if there had been a declaration neither TP1 nor TP2 was the father, they would authorise removal of TP1 from the birth certificate through re-registration of the birth.
The ALC took the position generally that “father” meant genetic parent too and parental responsibility should not simply follow birth registration, but that the court can of course confer parental responsibility on someone who is not the father with an order, if it met the child’s needs and welfare. The ALC were particularly keen that a child should always be able to know the facts of their birth and parentage too (particularly complicated for the child in MP, TP1 and TP2 of course).
Reunite, the international child abduction charity, also intervened (by invitation to do so) and looked at what might happen if a child was removed/retained by someone who was named on the birth register but not the biological father. This highlighted a gap in the usual protective arrangements (ie that a person with parental responsibility might be permitted to remove a child from the court’s jurisdiction) but they maintained the same view as to father being the genetically linked person.
The Court of Appeal heard all of these three cases over three days before making its decision. Going back to the questions above, it concluded:
- “Father” is limited to the biological/genetic father in common law and the Children Act and doesn’t go as far as social or psychological fathers.
- Parental responsibility does not automatically follow birth registration with a father’s name if they are not the genetic parent. Parental responsibility only follows if both conditions are met: they are the genetic father AND they are registered as the father.
3 & 4. Parental responsibility is not acquired at any time by someone wrongly registered as the father, so similarly there’s no need for an order to remove that parental responsibility or a declaration of non-parentage to achieve that same end.
So what happened to these families?
TP1 stayed registered as the child’s father because there was no proof either way and the Registrar was not therefore able to change the birth register. The question of parental responsibility was a separate one, as the court had the right to terminate any parental responsibility acquired. In this case the appeal failed and any parental responsibility TP1 held by the birth registration was formally ended at the same time.
The other 2 appeals also failed because AM and AJ had never been the (even possible) biological fathers.
This was a really interesting case for family law enthusiasts as questions about how parental responsibility might be brought to an end are very common, more so in light of the Victims and Courts bill presently wending its way through Parliament which will, if passed, restrict parental responsibility for child sex offenders who are sentenced for a term of 4+ years for an offence against a child they hold the responsibility for.
Much is also hoped for regarding “Jade’s law” which is built into the Victims and Prisoners Act of 2024, to end parental responsibility for the parent who murders the other parent (but is not yet in force).
For more detailed and specific advice on any of these issues, please contact any of the Family team at Geldards.