RG24P0700 - [2025] EWHC 1876 (Fam)

There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child's welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:

"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

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But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare.

The baseline position is the common law principle that a child's legal parents are the gestational mother and the genetic (also known as biological) father. This is a principle of law and not a rule of evidence or a presumption. However, the common law modifies the principle in relation to a married man, who will benefit from a rebuttable presumption of parenthood in respect of a child born to his wife during the marriage, whether or not he is the genetic father.

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The baseline position is also modified in certain respects by the HFEA 2008 and its predecessors, the Family Law Reform Act 1987 and the Human Fertilisation and Embryology Act 1990, in relation to children born as a result of assisted reproduction. So, a sperm donor to a licensed clinic will not be the child's legal father: section 28(6) of the 1990 Act.

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The registration of a birth under the Births and Deaths Registration Act 1953 will, for important practical purposes, identify a child's legal parents. A birth certificate is perhaps the most fundamental of all documents concerning personal status. However, the registration process depends on the accuracy and completeness of what the registrar is told by the informant(s), and many genetic parents do not appear on birth certificates. Registration is therefore practical evidence of legal parentage, but the legal status of parentage does not spring from registration. In a case where a child's parentage is called into question, the court may make declarations under the FLA 1986, which may or may not confirm the details that appear in the register. It is for that reason that section 14A of the 1953 Act provides for re-registration after a declaration of parentage and notification by the court to the Registrar General under section 55A(7) FLA 1986.

Registration has been said to constitute prima facie evidence of parentage, but it is not conclusive: Brierley v Brierley [1918] P 257, relying on the forerunner to section 34(2) of the 1953 Act. Registration of birth is certainly evidence of parentage upon which the outside world, including a court, is entitled to rely, but where there is an issue about parentage it does not create a legal presumption.

Subject to the following provisions of this section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.

A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the persons named in it for the purposes of that subsection—

is domiciled in England and Wales on the date of the application, or

has been habitually resident in England and Wales throughout the period of one year ending with that date, or

died before that date and either—

was at death domiciled in England and Wales, or

had been habitually resident in England and Wales throughout the period of one year ending with the date of death.

Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application (but this is subject to section 27 of the M1Child Support Act 1991).

The excepted cases are where the declaration sought is as to whether or not—

the applicant is the parent of a named person;

a named person is the parent of the applicant; or

a named person is the other parent of a named child of the applicant.

Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.

Where a court refuses to hear an application under subsection (1) above it may order that the applicant may not apply again for the same declaration without leave of the court.

Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

Any declaration made under this Part shall be binding on Her Majesty and all other persons.

Court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.

No declaration which may be applied for under this Part may be made otherwise than under this Part by any court.

No declaration may be made by any court, whether under this Part or otherwise—

Re S (A Child) (Declaration of Parentage) [2012] EWCA Civ 1160 (judgment given by Black LJ (as she then was));

Re A and B (Declaration of Non-Parentage) [2025] EWFC 41 (decision of Cobb J (as he then was));

MS v RS (Paternity) [2020] EWFC 30; [2020] 2 FLR 689 (MacDonald J);

KL v BA [2025] EWHC 102 (Fam) (decision of Ms Debra Powell KC siting as a deputy High Court judge).

With respect to the question of best interests in the context of the court's discretion pursuant to Section 55A(5) to refuse to hear such an application if it is not in the children's best interests to do so, in Re S (Declaration of Parentage) Black LJ observed as follows at:

In considering whether it can be said that to hear the application is not in the children's best interests (and further highlighting why facts justifying such a conclusion will generally, but not always be radical in nature) the right of the child to know, and the importance of the child knowing his or her paternity is a factor that must also be weighed in the balance, subject to the matters set out above.

These sections [section 55A and 58 of the 1988 Act] have unsurprisingly been considered by the court on a number of occasions. I was taken to Re S (a child) (declaration of parentage) [2012] EWCA Civ 1160 in which Black LJ (as she then was) observed (at [23]) that in considering an application of this kind, section 58 FLA 1986 makes clear that a judge "is deciding whether a fact is established, in this case whether this man is the father of this child"; it is not "taking a discretionary welfare decision or making a value judgment". Of the specific statutory provisions with which I am concerned, she said ([28]):

"… the thrust of sections 55A and 58 is that a declaration will be made unless there is a reason not to do so. Section 55A(5) does not simply invite the court to carry out an assessment of whether it is in the child's best interests to have a determination of the application. It empowers the court to refuse to hear the application if it considers that determining it "would not be in the child's best interests". By the time section 58 is reached, the impetus towards the declaration has become even stronger. It will be made unless to do so would not only be contrary to public policy but manifestly contrary to public policy".

At [31] of Re S, Black LJ described a theoretical but "obvious" and "radical" case in which the court would be likely to refuse to hear the application as not being in the best interests of the child, namely if it were to concern a teenager who is threatening suicide in the event the application is permitted to proceed, and where the evidence reveals that "should the proceedings continue, the child is at serious risk of emotional harm at the very least". Black LJ suggested two further examples at [32], namely that:

"… the child conceived in a rape or the child who is settled with adopters would potentially give rise to a power under section 55A(5) to refuse to hear the application".

Those examples provide a useful and authoritative benchmark.

In P v Q and Others (Declaration Of Parentage) [2024] EWFC 85 (B) Gwynneth Knowles J, having referenced Re S above, went on to comment on statutory provision in section 55A(5) FLA 1986 (the 'Declaration Gateway' as she called it) as follows:

"[27] When considering best interests pursuant to section 55A(5), the court is not required to consider whether hearing the application is in the best interests of the named child but only to consider whether hearing the application would not be in the child's best interests. Neither the paramountcy principle nor the welfare checklist in the Children Act 1989 are engaged in this exercise".