Following on from my last article connected to PR, (Re S, 13.6.25. DJ Knifton, Liverpool) I noticed this little related step sibling !
Parties:
X the child
F, X’s biological father,
M, the mother, and
H, mother's former husband.
The court was also assisted by Mr Niven-Phillips of Cafcass Legal who prepared a skeleton argument, having been appointed as advocate to the court.
The issue was, does the word ‘father’ in s2 of CA mean biological father [F] and only that, or does it include the husband [H] of a mother [M] who conceives a child by another man [F] whilst [H] and [M] were married?
F applied for a declaration that H does not have parental responsibility for X; the judge accepting that the High Court had such power.
Facts:
M and H were married when M conceived the child X with F. They were still married at the time of X's birth, but H was named as X's father on her birth certificate. H, has a relatively limited involvement in X's life. In 2021, following admission by M that H was not X’s bio father, (confirmed by DNA testing), H was removed from X's birth certificate. However, F's name could not be added to the birth certificate and M and H did not enter into a parental responsibility agreement. In 2023, M and H divorced. They remained on amicable terms and share the care of their now fifteen-year-old child. On 25 May 2025, F obtained a declaration of parentage confirming that he was X's legal father.
Law:
The judge started with ‘The word ‘father' is not defined in the Children Act 1989’; adding ‘In the absence of such a definition, I consider that the word should carry its ordinary meaning, namely biological father’. He referred to s1(1) of the Law Reform Act 1987[1]
He continued ‘Schedule 1 of the 1989 Act does partially define the term 'parent' for the purposes of that schedule. Paragraph 16(2) of Schedule 1 provides that:
‘In this Schedule, except paragraphs 2 and 15, ‘parent’ includes—
(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and
(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;
and for this purpose any reference to either parent or both parents shall be read as a reference to any parent of his and to all of his parents.’
The judge added ‘The expression ‘child of the family' can include children who are not the biological child of one or other parent’. And further said ‘In my judgement, the inclusion of these provisions in Schedule 1 of the Children Act demonstrates that in relation to certain provisions under the Act, Parliament expressly legislated so as to include non-biological parents within their scope. The absence of an equivalent provision in relation to section 2 of the Act, in my view, lends powerful support to the proposition that Parliament must have intended that ‘father' in that context should be confined to its ordinary meaning’. The judge considered to other cases cited in court[2], and noted in MS v RS (Paternity) [2020] EWFC 30; [2021] Fam 1 at paragraph 49:
‘It has been held that if a legal presumption is allowed to prevail over biological and social reality, this may amount to a breach of Article 8. (See Znamenskaya v Russia (Application No 77785/01) [2005] 2 FCR 406)'.
Similarly, the European Court of Human Rights in Kroon and Others v The Netherlands 19 EHRR 263; 27 October 1994 Serie A Number 285/C held that:
‘In the Court's opinion, "respect" for "family life" requires that biological and social reality prevail over a legal presumption which, as in the present case, flies in the face of both established fact and the wishes of those concerned without actually benefiting anyone.’
The result was that the judge granted the declaration sought ie H dies not have parental responsibility for X. Complicated world, isn’t it sometimes !
[1] "In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time."
[2] The cases in question include:
(a) K L v BA (Parental Responsibility) [2025] EWHC 102 (Fam) at paragraphs 66 to 67 (albeit I understand that this is the subject of an outstanding appeal to the Court of Appeal).
(b) Re C & A (Children: Acquisition and Discharge of Parental Responsibility by An Unmarried Father) [2023] EWHC 516 (Fam), [2023] Fam 230 at paragraph 13.
(c) The obiter dicta remarks of Theis J in RQ v PA and Another [2018] EWFC 68 [2018] 4 WLR 169 at paragraphs 33 and 34.
[1] "In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time."
2 The cases in question include:
(a) K L v BA (Parental Responsibility) [2025] EWHC 102 (Fam) at paragraphs 66 to 67 (albeit I understand that this is the subject of an outstanding appeal to the Court of Appeal).
(b) Re C & A (Children: Acquisition and Discharge of Parental Responsibility by An Unmarried Father) [2023] EWHC 516 (Fam), [2023] Fam 230 at paragraph 13
