DJ Arshad sitting in the Family court in Derby
Authors note: I was interested in this case because declaration of parentage [DoP] and parental responsibility [PR] applications crop up regularly in family law. However the circumstances of this case are sadly unusual, causing the judge to make the comments reproduced at para 3 below. I was further intrigued by the judges comments at para 11 below in (my) italics.
1. The father of child C, applied for:
(i) a DoP pursuant to section 55A of the Family Law Act 1986; and
(ii) an order for PR pursuant to section 4 of the Children Act 1989 in respect of his son C born in June 2026.
2. Sadly, shortly after giving birth to the parents second son C, the mother died. The parents were not married. The mother’s PR under section 2(1) of the Children Act 1989 ended on her death. The father then became the carer of the newborn and the older child.
3. The judge gave a reserved judgement because ‘the circumstances of this case appear to expose an unusual consequence of the present statutory framework concerning the interaction between declarations of parentage, birth registration and parental responsibility where an unmarried mother dies before her child's birth has been registered’.
4. The mother and father had been in a strong relationship since 2017.
5. The court's jurisdiction for DoP derives from section 55A of the Family Law Act 1986, the onus of proof being on the father. However the court found that easy to answer and did not request scientific proof under Section 20 of the Family Law Reform Act 1969. S 55A only formally establishes or disestablishes the biological and legal parent-child relationship.
6. The judge made the DoP sought, (and as set out in the Family Procedure Rules 2010 at r 8.22 (2) a copy of the declaration of parentage and the application must be sent to the Registrar General within 21 days of the date the declaration was made); however that does not automatically confer PR.
7. The father could not acquire parental responsibility [PR] under section 4(1)(a), because he did not come within s 1A of the Children Act 1989, and no person held PR for the child.
8. Section 4 of the Children Act 1989 permits the court to confer parental responsibility upon an unmarried father, and the judge had regard to the factors identified in Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151: the father's commitment to the child, the attachment between father and child, and the father's reasons for applying. Saying ‘Each factor is overwhelmingly satisfied’.
9. C's welfare plainly required that there be a person able lawfully to exercise parental responsibility on his behalf.
10. S 3(5) of the Children Act 1989 permits a person with the care of a child to do what is reasonable to safeguard the child's welfare, but that provision is no substitute for the legal authority that accompanies PR.
11. The judge then added ‘The Registrar General will be notified of the declaration of parentage, which may enable the register to be amended so as to record the father as C's father. Whether registration achieved by that route would of itself confer parental responsibility under section 4(1)(a) of the Children Act 1989 is not a question free from difficulty, and it is unnecessary for me to decide it: any such process would in any event take time, and C's welfare requires that parental responsibility be established now’.
12. Although it was not necessary for the district judge to examine the law re the italicised section above, my understanding of the law is that PR is not obtained via a declaration of parentage under s55A because s4 of the Children Act 1989 1(A) does not include s55A. One is unsure why the judge made the italicised comment.
[1] Acquisition of parental responsibility by father.
(1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if
(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);
The enactments referred to in subsection (1)(a) are
(a) paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;
(b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c) sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976
