A recent judgement has been handed down in the High Court in relation to the child arrangements for a 4-year-old child where the applicant, referred to as “KL”, discovered that he was not the biological father. This has opened up discussion on parental responsibility and highlights that although legal parentage and parental responsibility are two entirely distinct principles, the Court and legislation consider them closely intertwined with one another.
KL was in a relationship with the mother referred to as “BA”. The parties were not married when the mother got pregnant and gave birth to a child, referred to in the judgment as “MA”. At the time of the birth, KL had no reason to believe that he was not the father, and he was present to register the birth and was named on the birth certificate as the child’s father. However, when the parties separated a few years later, the mother informed KL that he might not be the child’s biological father, and subsequent genetic testing showed that the biological father was indeed, another man.
KL applied for a parental responsibility order after the mother made comments that she intended to remove his parental responsibility. She also made an application to the court for a declaration of non-parentage in respect of KL, which he did not oppose, and a declaration of non-parentage was made on this basis. KL sought orders from the court regarding child arrangements for the child, arguing that he had acquired parental responsibility under the Children Act 1989 when registering the child’s birth and his parental responsibility for the child could only be removed by court order. However, the mother argued that KL never acquired parental responsibility as he was not the legal father.
The court ruled that KL did not acquire parental responsibility under the Children Act 1989 when he was mistakenly registered as the father on the birth certificate and therefore, no order was required to remove parental responsibility which he never held.
Parental responsibility is entirely distinct from the principle of legal parentage and provides parents with all the rights, duties and powers relating to the upbringing of a child. This importantly provides parents with the legal rights to make decisions for their children, such as agreeing to the child’s medical treatment and choosing and providing for their education, amongst other decisions and duties. All mothers are automatically provided with parental responsibility at birth, and fathers will acquire parental responsibility if they are either married to the child’s mother or are listed on the child’s birth certificate. However, as emphasised in the case of KL v BA, this is under the presumption that the father is indeed the biological father of the child.
In same-sex relationships, the parent who has not given birth will automatically acquire parental responsibility if they are civil partners or are married to the birth parent at the time of treatment, for example, donor insemination or fertility treatment. If they are not married or in a civil partnership, then the second parent can either apply for parental responsibility if a parental agreement is made, or by marrying or entering into a civil partnership with the birth parent and entering into a parental responsibility agreement or by jointly registering the birth.
If you are in a scenario where you have not automatically gained parental responsibility at the birth of your child, there are ways to later acquire parental responsibility. These include:
- Agreeing a parental responsibility agreement
- Applying for a court order
- Applying to adopt the child
If you have any queries on parental responsibility or the arrangements for children in general, please contact our Family team who will be happy to assist.
