The Court of Appeal is currently grappling with the question of parental responsibility and the loss of this in the case of Re J, Re M, Re P (Loss of parental responsibility). Below, we explore what parental responsibility is, how it can be gained and lost, and what the repercussions of this case could be.
What is Parental Responsibility?
Parental responsibility refers to all the rights, responsibilities, duties and authority that a person has in relation to a child and their property. This includes making significant decisions regarding the child’s welfare, such as education, medical treatment and religious upbringing
Who has Parental Responsibility?
It is possible to automatically have parental responsibility or to acquire it.
The following people automatically acquire parental responsibility when a child is born:
- The child’s birth mother;
- A transgender father who gives birth to a child (and will be referred to as the birth mother on the birth certificate); and
- A parent who is married or in a civil partnership with the birth mother when the child is born.
An unmarried parent can acquire parental responsibility in the following ways:
- Marrying or entering into a civil partnership with the birth mother;
- Being named as the other parent on the child’s birth certificate or by re-registering the birth to record the same;
- Entering into a parental responsibility agreement with the birth mother;
- Obtaining a court order for a declaration of parentage or an adoption order giving them parental responsibility.
Other people can acquire parental responsibility if:
- They become the child’s guardian or special guardian;
- They enter into a parental responsibility agreement with all other people with parental responsibility; or
- They obtain a court order giving them parental responsibility.
For more about parental responsibility see What is parental responsibility? | Weightmans
Re J, Re M, Re P (Loss of parental responsibility)
The Court of Appeal is currently considering important questions surrounding parental responsibility following three lower court decisions that have now been appealed. All three appeals deal with the acquisition of parental responsibility by unmarried fathers under section 4 of Children Act 1989 and declarations of parentage made under section 55A Family Law Act 1986. The appeals have been joined as they raise important matters of public interest.
Background
In Re J, both the appellant, a man known as KL, and the child’s birth mother believed him to be the father of J and he was registered on the birth certificate as such. KL and the birth mother were not married. Genetic testing showed some years later that KL was not the biological father of J. However in the intervening years he had parented her and acted as her father in the usual sense of the word. The court had to determine whether KL had ever held parental responsibility for J. Debra Powell KC, sitting as a deputy high court Judge, determined that KL had never actually held parental responsibility for J.
In the case of Re M, the child was conceived through donor sperm and informal artificial insemination. The appellant was intended to be the father by both parties and was named on the birth certificate despite not having a genetic link to the child. Later, care proceedings were issued and HHJ Tucker determined, with reference to the case of Re J, that the appellant had never held parental responsibility for the child.
Finally, the case of Re P is complex and unique with respect to the paternity of a child. The child has two possible fathers, who are identical twins. The first, F1, is named on the child’s birth certificate however genetic testing has not been able to establish whether F1 or F2 is the biological father. The finding was an equal likelihood of paternity. HHJ Reardon therefore did not make a declaration of parentage and F1 remains named on the birth certificate. At the time of the proceedings, more sophisticated DNA testing was estimated to cost in the region of £90,000; however on the first day of the appeal hearing it was raised that such testing may be available for £14,000. In light of this, those concerned were asked to consider returning the matter to the lower court and undergoing further testing.
The appeal case is now to determine the following questions:
1. Whether the term ‘father’ has to be a genetic parent in order to acquire parental responsibility;
2. Whether a non-genetic father acquires parental responsibility at all; and
3. What is the effect of a declaration of parentage on parental responsibility for a person who is declared not to be the father.
The arguments raised on behalf of the appellants have been numerous and complex but ultimately come down to distinguishing between a biological father and a natural, social, father who has historically been heavily involved in a child’s life. It is submitted on behalf of the appellants that families, and especially the children involved, need certainty from day one as to who has parental responsibility and can make decisions on behalf of the child.
Judgment is expected to be handed down in January 2026, which could have huge impact upon parental responsibility and in particular whether non-genetic fathers can still acquire parental responsibility.
