Who has parental responsibility?
A mother will always automatically have parental responsibility from the moment she gives birth to the child. However, the father does not have automatic parent responsibility. A father obtains this if he was married to the child’s mother at the time of the birth, or:
- jointly registering the birth of the child with the mother and being named on the birth certificate.
- entering into a parental responsibility agreement with the mother
- obtaining a parental responsibility order from the court
Brief summary of the case and the outcome
C and A are two children who are twelve and six years old, respectively. Both children have the same mother but different fathers. The mother made an application for a declaration of ’non parentage’ and sought for the Court to remove parental responsibility from C’s father, N. N had acquired parental responsibility as he was named on C’s birth certificate, but he later took a paternity test which concluded that he was not C’s biological father. Therefore, it was mothers’ position that N could not hold parental responsibility and so sought the orders she did.
The father’s position was that although he accepted, he was not the biological father, the matter should be adjourned and determined at upon the conclusion of the proceedings. He argued that in order for the Court to make a decision, they must undertake a welfare analysis and that such analysis should be undertaken at a final hearing.
S.2(2) of the Children Act 1989 (‘the Act’), is the relevant section of the Act, given that C’s mother and N were not married at the time of the birth. As N was registered on C’s birth certificate, he acquired parental responsibility in line with section 4(1A) of the Act and section 10(1)(a) of the Births and deaths Registration Act 1953.
HHJ Moradifar (sitting as a High Court Judge) granted the mothers application and ordered that N shall cease to have parental responsibility for C and invited the registrar to reflect this on the register.
Case law and issues which must be considered
When coming to a decision and providing a Judgement, HHJ Moradifar considered a couple of other cases.
The first case considered was RQ v PA and another [2018] 4 WLR 169. The facts of this case differ from the facts of the matter we are considering, however there are issues which were discussed which relate to this case.
RQ and PA had the child by way of embryo adoption in Spain. As they underwent the treatment abroad, they did not sign the relevant HFEA form to confirm legal parentage. The couple ended up separating shortly after the child was born and RQ instructed solicitors in order to obtain child maintenance from PA. PA argued that he was not TSA’s biological father and therefore he was not liable to pay any child maintenance. Consequently, RQ issued an application seeking a declaration of parentage. It was found that given that the parties underwent treatment outside of the UK, the provisions set out in HFEA 2008 do not apply as the treatment was not provided by a licenced clinic in the UK and therefore conditions under SS 36 and 37 HFEA 2008 were not met by PA and therefore it was ordered that the declaration sought is to be made.
Finally, the case of A Local Authority v SB & Ors [2022] EWFC 111 was referred to. The facts of this case are similar to the one we are looking at. The Mother made an application for declaration of non-parentage; the application was supported with DNA evidence which stated that RK was not the biological father of the child. RK had no intention of opposing the application made by the mother, but there was an issue in relation to the timing of the application as it would have impacted the other application which had been made. HHJ Case made the declaration of non-parentage based on the fact that RK is not the biological father of the child. However, turning to the application for discharge of parental responsibility, HHJ Case was torn with the idea of whether discharge of parental responsibility was an automatic consequence of the declaration of non-parentage or whether it is a separate welfare-based decision.
HHJ Case referred to section 4 (2A) of the Children Act 1989 which states "A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders". There is emphasis on the word ‘only’, suggesting that parental responsibility can only be removed by a Court order, which implies this does not automatically cease should a declaration be made.
A further point which HHJ Case found to be of utmost of importance was section 4 of the Children Act 1989, which states that the child’s welfare is of paramount.
The outcome of this case was that, section (2A) of the Children Act 1989 is the only means by which the Court can consider removing parental responsibility from a father who gained it under subsection (1); that it is a welfare based decision, that the fact that the man has been found not to be the biological father will feed into that welfare consideration, but that the discharge of parental responsibility is not automatic and that the importance of the lack of a biological link is one which will vary from case to case.
So, what does this mean going forward?
It is not clear on what basis HHJ Moradifar distinguished this case from the case of A Local Authority v SB & Ors [2022] EWFC 111. The facts were the same in as far as the fathers were not the biological father and that the mother in both cases applied to the Court for a declaration. In both cases, it was the father’s position that a welfare analysis should be conducted. HHJ Case in the Local Authority case agreed that there should be a welfare analysis, however, HHJ Moradifar did not share the same view and took the view that there was no need for a welfare analysis given that parental responsibility would be lost once the order is made by the Court.
There is a wide discretion as to how matters regarding parental responsibility are dealt with and each Judge will interpret the law differently. Understandably, there must be some flexibility given that facts will be different in each case, however, the main issue is whether there should have been a welfare analysis in this case. Given the age of C (12 years old), my view is there should have been more consideration given to the child’s welfare needs and the relationship which they had built with N over the last 12 years.
Moving forward, there will continue to be some uncertainty around the removal of parental responsibility as there is case law which suggests Judges should consider a welfare analysis however as can be seen in the present case this may or may not be done.
The full case can be viewed here -
