Family Law blogger John Bolch asks whether a negative paternity test automatically discharge parental responsibility?
Every day I check for new family law-related judgments, primarily on two sites: Bailii and the National Archives. Often I come across judgments on one site that I have seen previously on the other site. But sometimes, what appears to be the same judgment as one seen previously is actually a new judgment, just on a very similar point.
The thing is, judgments can be like buses: you have none on a certain point of law for years, and then all of a sudden two come at once.
And so it was recently with two public law cases in which the mother of the children applied to remove parental responsibility from a man found not to be the biological father of one of the children.
Before looking at those cases I first need to briefly explain, for the benefit of non-lawyers, the routes by which a father can acquire parental responsibility
A child’s mother will always automatically acquire parental responsibility for the child, but the father will only automatically acquire it if he is married to the mother.
If the father is not married to the mother then he can acquire parental responsibility for the child in one of three ways:
- By being registered as the father on the child’s birth certificate;
- With the mother’s agreement, in which case the parents will need to sign a written parental responsibility agreement; or
- By applying to the court for a parental responsibility order.
OK, having got that out of the way we will look at the first of the two judgments.
The first judgment was handed down on the 9th of March by His Honour Judge Moradifar, sitting as a Judge of the High Court. The judgment was made in care proceedings concerning two children, who share the same mother but have different fathers.
A man had parental responsibility for the older child, having been registered as the father on the child’s birth certificate. However, a paternity test established that he was not the child’s biological father. The mother therefore applied to the court for a declaration of ‘non parentage’ and the discharge of the man’s parental responsibility.
The mother argued that in light of the undisputed paternity test, the man could not properly hold parental responsibility for the child. A declaration by the court as sought would rebut the presumption of paternity which by operation of law had granted the man parental responsibility. There would then follow a re-registration process that would remove the man’s name from the child’s birth certificate, and discharge his parental responsibility.
This position was supported by the local authority and the child’s guardian.
The man, on the other hand, argued that the court should only discharge his parental responsibility after finding that that was the best thing to do for the welfare of the child.
HHJ Moradifar examined the law and decided that the mother was correct.
He concluded: “where a man has gained parental responsibility for a child by being registered as the father of the child, such a registration and the consequential award of parental responsibility by operation of the law is based on the rebuttable presumption that he is the biological father of the said child.
If that presumption is rebutted, the foundation for the acquired parental responsibility is displaced. Subsequently parental possibility will be lost by the order of the court that reflects the status of the individual adult and does not require a welfare analysis.
By contrast, where there is an application for a parental responsibility order or other orders that would grant parental responsibility to the applicant, the court will be tasked with undertaking a welfare analysis. This is a separate and different route through which parental responsibility may be awarded to the instance case.”
Accordingly, he granted the mother’s application.
The second judgment was handed down on the 23rd of March by Her Honour Judge Case, in the Family Court at Manchester.
I will not set out the facts here, as they were very similar to those in the first judgment.
Judge Case was aware of HHJ Moradifar’s judgment, and one would have thought therefore that her decision would be simple: the negative paternity test would result in a declaration of non-paternity, which would automatically discharge the man’s parental responsibility...
As Judge Case pointed out - after all - as HHJ Moradifar was sitting as a High Court Judge his judgment was binding upon her, unless it conflicted with higher authority.
And she found that there was higher authority: a 2014 decision of the Court of Appeal, which HHJ Moradifar had not considered.
The Court of Appeal’s decision concerned the discharge of parental responsibility from a man who was the biological father, but it held that when considering whether or not to discharge parental responsibility the court must consider the welfare of the child.
This was true whether or not the man was the biological father.
In short, a negative paternity test and resulting declaration of non-paternity does not automatically discharge parental responsibility.
For the sake of completeness I should report that, after undertaking a welfare analysis, Judge Case concluded that it would be in the child’s best interests for the man’s parental responsibility to be discharged.
Video credit: Video by Artem Podrez: https://www.pexels.com/video/children-running-inside-a-classroom-8088670/