RG24P0700 - [2025] EWHC 1876 (Fam)

There is no dispute that the respondent is the genetic, gestational and psychological parent of D. There is no dispute that the applicant is neither the gestational nor genetic parent of D. I am not concerned to determine who is D’s genetic father. I am only concerned to make a declaration of parentage in respect of whether or not the applicant is D’s parent. This is a mixed question of fact and law. It is factual because under the common law a genetic father is recognised as a parent. It is also a legal question because of the statutory schemes which attribute parenthood to non-biological parents (see P v Q at paragraphs 16 and 17). A declaration of parentage pursuant to section 55A is not therefore only a question of biology.

I must first consider the preliminary issue of whether to refuse to hear the application if I consider that the determination of the application would not be in the best interests of D. The applicant invites me not to hear the application. It is said this would cause D emotion/psychological harm. It is said there are practical reasons not to do so: possible Irish citizenship might be denied him and financial detriment might be caused to him because the applicant would no longer have child maintenance obligations and because it is said D’s right to inherit under the laws of intestacy may be impacted.

The applicant’s counsel has set out a diligent case in her skeleton argument. However, I have no hesitation in concluding that it is not contrary to D’s best interests to determine the respondent’s application. There is little or no evidence that the determination of this application would cause emotional harm. It is not what the ISW reports. D has a close bond with the applicant and that will not change. This case gets nowhere close to the type of examples set out by Black LJ in S or considered by MacDonald J in MS v RT. Furthermore, I agree with MacDonald J that it is important for D to know the true position in respect of his genetic parents, at an appropriate time. I adopt the reasoning set out in paragraph 71 of MS v RS. D can be carefully told this in due course. Both parties agreed the ISW set out clear evidence about how that can be managed and explained in a child sensitive manner in due course. Not only is it not not in D’s best interest to refuse to determine the application for a declaration, in my judgement it is positively in his best interests for it to be determined. His parents’ difficult co-parenting relationship will not be helped by hiding the truth.

I therefore proceed to determine the application. As a matter of fact there is no dispute that the applicant is not D’s genetic father. Under the common law, as he is not the genetic father, he is not D’s parent.

Can the common law position be displaced by statute? Both parties agree that the applicant cannot become D’s parent pursuant to sections 36, 37 or 38 of the Human Fertilisation and Embryology Act 2008. The parties were not married, were not in a civil partnership and the fertility treatment took place outside the United Kingdom at an unlicensed clinic. I cannot “read down” any of these provisions pursuant to the Human Rights Act 1998 and no real attempt was made (rightly) by the applicant’s counsel to pursue this. I find the common law is not displaced by statute: the applicant is not D’s father.

Pursuant to section 55 (8) (1) there are no public policy arguments contrary to making the declaration. There are certainly no manifest public policy arguments against it. On the contrary, public policy dictates that the Register should be accurate. This was recognised by the applicant and his counsel (rightly) did not mount an argument on this issue.

I therefore accede to the respondent’s C63 application to make a declaration of parentage. I make a declaration of parentage pursuant to section 55A (1) that the applicant is not the parent of D. Pursuant to section 55 (A) (7) of the 1986 Act, the declaration of parentage will be sent to the Registrar General.

Although I do not strictly need to deal with the issue, the parties have raised the question of parental responsibility. In my judgment, the applicant did not acquire parental responsibility in August 2022 when his name was entered on to D’s birth certificate. This was an evidential step but the statute had not conferred the necessary parental responsibility because the necessary terms of the 1989 Act had not been met. A father obtains parental responsibility pursuant to sub-section 4 (1) (a) of the 1989 Act if he is named on the birth certificate. A person who is not a father does not obtain parental responsibility because they are named on a birth certificate, pursuant to section 4 (1) 9a) of the 1989 Act. This is the position adopted by Theis J in RQ v PA [2018] EWFC 68; [2018] 4 WLR 169 at paragraph 34.

This same issue was given fuller consideration by DHCJ, Ms Debra Powell KC in KL v BA [2025] EWHC 102 (Fam) (Footnote: ¹). She considered the matter in some detail and concluded she agreed with Theis J. She held at paragraph 64:

Having read KL I am in agreement with Ms Powell KC, for the reasons she gives. The applicant has never been the biological or legal father of D. This is a condition precedent of sub-section 4 (1) (a) conferring on him, as an unmarried parent, parental responsibility when registered on D’s birth certificate.

Against this background I turn to the outstanding private law issues. First, I must decide whether to make either: a joint lives with order; or an order that D lives with the respondent and, as her counsel invited me to, confer parental responsibility by way of section 12 (2A) of the 1989 Act. On this issue, I prefer the applicant’s case and this is for the reasons given by the ISW, Ms Cockley. The respondent resents the control given to the applicant. There is a real risk she will further marginalise the applicant from decision making in respect of D. I accept the ISW’s evidence the parties should have equality of parental responsibility status. I reject the respondent’s submission that they are not equal as the applicant is not a biological parent. As set out above there are diverse forms of parenthood. The varying and different ways in which parental responsibility can be conveyed on a person reflect this. I approach the issue from D’s perspective: it is better he has two loving parents who can exercise parental responsibility over him. It is better he has two parents who have the responsibility of parental responsibility to protect him. It will be better still that they do so from the position of some quality. The imbalance of power may lead to the applicant having a limited role. The extent of the untrue allegations made by the respondent, which she acknowledges she has no proof of, underline the risks of the applicant’s potential marginalisation. The best outcome for D is a joint lives with order. I have applied the welfare checklist to this and conclude this best represents who he is and will best protect him from harm. It will encourage good decision making by both parents in respect of his holidays, his schooling and healthcare decision making. He has a bedroom in each home and while he lives more with his mother, D also lives with his father.

I also accept the ISW’s recommendations that the joint lives with order will provide for D to live with the applicant every Wednesday evening until Thursday morning and every second weekend from Friday after school until Sunday evening. D will be more settled spending two nights over the weekend than just one. From 2026 holidays will be split equally. This summer D will spend two weeks with the applicant and four weeks with the respondent. D will increase the overnight stays from two nights in week one, increasing by a night each week until he spends five nights in week 4 (this is fourteen nights in total). That will provide him with a staged approach to spending more time with the applicant. Two of the six weeks D will spend with entirely with the respondent to permit them a holiday together. The parties are to agree those dates. Whilst I accept the general thrust of the ISW’s recommendations, it is too soon for D to spend three weeks with the applicant. It is best he builds up gradually to this.

Christmas and Easter holiday are to be split on the basis the respondent suggested. This seemed a fair compromise, focused on D and permitting him to see both parents over holidays. Whilst the applicant wishes to take D to Ireland, the new arrangements will need time to bed in and it will take time for D to get used to this. In due course, in a few years, I cannot see why a Christmas in Ireland one year would be contrary to his welfare interests. I hope this can be agreed otherwise it can the subject of a discrete specific issue order application.

The case was well prepared by counsel and solicitors. I thank them and ask they draft an order to give effect to this decision.