GENES AND JUDGES: THE FAMILY IMPACT OF A FATHERHOOD ‘MISTAKE’ 

Published on 13 March, 2025 | Emma Hubbard

Hall Brown is one of very few firms with a team specialising in children law cases.

Generally, such work involves helping separated or divorced parents with ways in which they can best care for their children. Yet some cases present complex issues not only legally but also emotionally for the parents and the children concerned.

I recently represented a father where an issue in relation to his parental responsibility for his child was brought into question.

The parties believed my client to be the child’s father. In 2024 the mother raised doubt as to the child’s parenthood and a DNA test confirmed my client’s worst fear, that he was not the biological father of the child. The mother, without the father’s knowledge, amended the child’s birth certificate to remove the father’s details.

Even though the genetic reality came as a shock to my client, it did not change how he viewed his relationship with his child, and he was determined to remain fully involved in her life.

The case was heard before His Honor Judge Afzal.  There were many elements to the case, but one question HHJ Afzal had to grapple with was how my client’s parental responsibility for his child was maintained. The decision was made in September last year but has only just been published (https://www.bailii.org/ew/cases/EWFC/OJ/2024/377.html).

In the Judgment, HHJ Afzal cited two judgments from March 2023. The first of those by His Honor Judge Moradifar, who considered whether a Declaration of Non-Parentage automatically led to a discharge of parental responsibility. He reasoned that it could not be an automatic consequence of such declaration and that a separate order discharging parental responsibility had to be made. He concluded that such order would be made where a Declaration of Non-Parentage on biological fact was made, as in essence one had to follow the other (https://www.bailii.org/ew/cases/EWHC/Fam/2023/516.html).

In a case heard by Her Honor Judge Case only a fortnight later, she took an opposing view that “a declaration of non-paternity is a declaration of biological fact rather than a declaration as to legal status” and that when considering a discharge of parental responsibility, the welfare of the child had to be considered and the welfare test applied (https://www.bailii.org/ew/cases/EWFC/OJ/2023/58.html). This was also the view taken by HHJ Afzal and in applying a welfare assessment, the test to discharge PR was not met, thus my client retained it.

Before HHJ Afzal’s ruling was published last month, a decision made by Deputy High Court Judge Debra Powell KC was issued (https://www.bailii.org/ew/cases/EWHC/Fam/2025/102.html).

The facts of the case which she adjudicated were broadly similar to those in my case, yet the result was very much different.

She ruled that a person incorrectly named on a birth certificate, with no biological link to the child, did not need an order of the court to discharge parental responsibility, as he never had parental responsibility at all. Only someone with a biological link to a child can obtain PR by being named on a child’s birth certificate.

Even taking into account the essential fact that family law is discretionary, with judges reaching their decisions based on the individual facts of the cases brought before them, I would venture that, to many people, the differing conclusions might be rather confusing and there is now a degree of uncertainty around the acquisition and retention of PR.

Whilst the facts of these cases may at first glance seem unusual and rare, when considering how many babies are born each year there are potentially many fathers who find themselves unwittingly in this situation. Those fathers may believe that they do not have PR as a result of the High Court decision, but the High Court decision is not settled law. It is open to appeal or change. If a higher court takes a different view, then fathers who believed they had no PR, could find themselves with it again. Or father’s that thought they continued to hold PR, now are being told that they don’t. This leaves a great deal of uncertainty.

Not having parental responsibility has immediate and far-reaching consequences, such as having no automatic say in the schooling, name or medical treatment of a child.

We should not forget that such a determination can have negative consequences for the development of the children concerned too.

Given that the “paramount consideration” of all proceedings governed by the Children Act 1989 is the welfare of the children concerned (https://www.legislation.gov.uk/ukpga/1989/41/section/1), it is no wonder that the decision to remove parental responsibility is usually only taken in relatively exceptional circumstances.

The most recent data released by the Ministry of Justice (MoJ) show that it happened only 11 times in 2023 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2024/family-court-statistics-quarterly-july-to-september-2024).

Although parental responsibility can be gained by means other than a biological connection, such as via a Child Arrangement Order, it only remains for as long as that order is in force. There are other restrictions that exist with parental responsibility being granted by different means, as considered by HHJ Afzal.

There are other practical issues which may stem from the discovery that you are not, in fact, the father of the child which you have helped raise as your own and now face the prospect of having no PR for.

They include the question of child maintenance that has been paid on the assumption that someone was the father and had parental responsibility.

It could be said that the only surefire way to avoid the kind of mistaken registration on a birth certificate identified by Deputy High Court Judge Powell is for men to take a DNA test before they are registered.

Whilst it might avoid the consternation and complication of these recent cases, it is hardly a romantic requirement, practical requirement or one likely to build trust between would-be parents.