Birmingham City Council v X & Ors

I gave a lengthy judgment in these proceedings on 29^th January 2025. This separate judgment concerns one discrete issue regarding Z’s parental responsibility of the youngest child who is subject to those proceedings, A.

As set out in the Judgment handed down on 29^th January 2025, there are two known and established facts regarding A’s paternity:

The evidence heard in the proceedings was that A was conceived following Z and/or X purchasing sperm over the internet from an unknown donor and effecting insemination of the mother at home using that sperm. That took place, on their evidence, without knowledge or involvement of any assistance from any registered or regulated specialist fertility clinics.

Z has given oral and written evidence that he regards himself as A’s father. He accepts, now, that he was dishonest about her paternity with professionals (holding himself out as her genetic father over a prolonged period of time) and with A herself. A now knows that Z is not her biological father. She has some understanding of that, stating, as set out both in written evidence, and oral evidence, that that means that they do not share ‘the same blood’. Z has played a significant role in A’s life and wishes to continue to do so.

Two issues arose for determination. First, whether the Court should make a Declaration of Parentage. Secondly, if that Order were made, what, if any consequences it would have for Z’s parental responsibility.

At the outset, it is important, in my judgment, to set out the following:

The Local Authority invited the Court to make a Declaration of Parentage under s.55A of the Family Law Act 1986 (“FLA 1996”). I use the term ‘declaration of parentage’ to encompass that which is actually sought in this case: a declaration of non-parentage; that Z is not A’s father. So far as relevant, s.55A provides as follows:

Sections 58(1) and (2) of the Family Law Act 1986 further provide that:

“(1)

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

(2)

Any declaration made under this Part shall be binding on [His] Majesty and all other persons”

In this case there is undisputed DNA evidence that Z is not A’s biological father. I do not consider that there are any, or any persuasive public policy reasons not to grant the declaration sought. On the contrary, there are strong public policy reasons why a birth certificate should accurately reflect paternity, particularly where some truth regarding that individual’s paternity is known. There are also strong public policy reasons in favour of correcting deliberate errors on that important document. (That proposition is also supported by the decisions discussed in H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74, (albeit in the context of adoption) including, in particular Re S (A Child) (Declaration on Parentage)cited at paragraph 40 and elsewhere in H. ). Children, and when they grow, adults, have an interest and right in understanding their heritage and biology. Where the truth about a person’s heritage and biology is withheld from them, that can cause confusion, anger and undermine their long-term welfare. Further, a birth certificate is a legal document which brings with it legal rights. It is a recognised form of proof of identity and should, therefore be accurate. Sometimes, paternity can be inaccurately recorded because of a genuine mistake. This case does not, however, concern a genuine mistake. On the contrary, on the basis of what was known to be false information, Z was named as A’s father on her birth certificate. In addition, her conception, as noted above, took place outside of the careful and detailed statutory scheme regarding assisted fertility treatment. There are, in my judgment, strong reasons, in addition to the benefit of the birth certificate being accurate, why the declaration sought in this case should be granted.

I consider, for all these reasons, that the declaration sought should be made and accordingly, make it.

Upon the court making a Declaration of Parentage, a court officer must, within 21 days, senda copy of the declaration to the Registrar General (s.55A(7) FLA 1986; FPR r.8.22). Uponreceipt, the Registrar General must consider whether it appears to him that A’s birthshould be re-registered and, if he so considers, must authorise the re-registration of herbirth (s.14A BDRA 1953). The question which has then arisen in this case is whether, assuming that A’s birth is re-registered and Z’s name removed, Z will lose parental responsibility without the need for further order; whether, if further order is required, that must be following a welfare analysis, or, whether, in law, he ever held parental responsibility.

There have been a number of authorities in the recent past regarding the consequences of making that declaration upon the parental responsibility of an individual named on a child’s birth certificate but whose name is removed as a result of the Declaration of Parentage as set out above. The factual circumstances of each of those cases are different to the present case. Nonetheless, the legal issue (whether a man, incorrectly named as the father on a birth certificate as the child’s father, has parental responsibility) is common to them all. Each case sets out in detail the relevant legal principles. Each Judge, considering those principles, came to a different view. There is little benefit in repeating those legal principles and the analysis of each Judge here in detail. The judgments are each clear and detailed, and must be read and considered in full. For the purposes of this judgment, and having undertaken that task, I set out the following summary of those decisions:

In addition, in RQ v PA, [2018] EWFC 68 Theis J accepted a submission that, “father” in the CA 1989 must refer to someone who, “in fact and in law be the father to be able to take advantage of” the possibility of acquiring parental responsibility by being named on the birth certificate. She stated, albeit on an obiterbasis,

As noted above, the factual contexts in which the decisions identified above were each different from the present one.

In KL v BA the parents were in a relationship and during that relationship the mother (BA) informed her male partner (KL) that she was pregnant. After the child was born, both adults cared for the child and KL believed that he was the child’s biological father. KL and BA registered the child, birth together. Some four years later, after the relationship had ended, BA, the mother, informed KL that he was not the child’s father. KL had always considered the child to be his daughter and had a close bond with her. On a detailed review of the authorities, including Re Cand A local authority v SB and RQ v PAthe Judge held that KL had never, as a matter of law, held parental responsibility for the child: that any such responsibility he had acquired through the registration of his name on her birth certificate was void ab initio.

In Re C, an individual, N, was registered as the father to the child pursuant to s.10 of the Births and Deaths Registration Act 1953 and, pursuant to s.4(1) of the CA 1989 had apparent parental responsibility. It was subsequently established that N was not the child’s biological father. Care proceedings were issued in respect of the child, during which the mother of the child applied for a declaration on non-parentage pursuant to s.55 A of the FLA 1986 and argued that N’s parental responsibility would cease on such a declaration being made. N argued that that application should be adjourned to the end of the care proceedings because a welfare analysis would be required to discharge or remove his parental responsibility. The Judge considered authorities including A local authority v SB and RQ v PA and held that, once it was established as a matter of fact that the individual named on a child’s birth certificate as that child’s father, was not the child’s biological father, the rebuttable presumption of parentage (the foundation for the acquired parental responsibility under s.4 CA 1989) was displaced. He held that that declaration however would not serve to remove N’s parental responsibility as, pursuant to s.4(2A) of the CA 1989 that could only take place if the Court so ordered. He held, however, that a welfare analysis was not required and would be superfluous as the very legal presumption for the acquisition of parental responsibility had been proved not to exist. He held that N’s parental responsibility ceased from the date on which the order was made or the date specified in the court order.

The decision in A local authority v SB was also made in the course of care proceedings. The mother applied to discharge the parental responsibility of K (named as the father of one of the children on her birth certificate). In July 2022 HHJ Case determined that a court can only consider removing parental responsibility from a person who has gained it under s.4(1) by making an order pursuant to s.4(2A) of the CA 1989. Further, she held that that is a welfare-based decision, and that the fact that the man in question was not the biological father would be a relevant consideration but should not automatically lead to the discharge of parental responsibility: the importance of the lack of a biological link will vary from case to case. In early 2023 the decision in Re C was published. HHJ Case then considered further submissions, and the decision in Re C and handed down a further judgment in March 2023. She also considered the decisions in RQ v PA and Re G.

Judge Case stated:

“The void ab initio interpretation would lead to the presumed father's parental responsibility being immediately thrown into doubt as soon as a mother made a statement casting doubt on his paternity. This has the potential to create widespread uncertainty in relation to the parental responsibility of unmarried fathers. Further, as is alluded to HHJ Moradifar, it opens up the spectra of a whole swathe of litigation challenging post facto the actions and decisions of such a man, who has taken decisions in good faith, believing that he held parental responsibility for a child in circumstances where he is named on that child's birth certificate as father. Both results must be contrary to public policy.”

During the most recent hearing in this matter Counsel informed the Court that there is a prospect of appellate consideration of this issue within the near future, or of further decisions. However, timescales are unclear. Having discussed, and heard submissions regarding this issue with the parties, through their instructed counsel, I determined that I should decide this issue now. All agreed that I should do. Z, in particular, objected to any suggestion that the decision should be further delayed. The parties were permitted to file further submissions in respect of this issue only. Those submissions focused on the three most recent cases. Little was said regarding principles of statutory interpretation. I subsequently drew attention to cases I had considered during the course of preparation for this judgment, but had not been referred to by any party. The parties took a short period of time to consider those authorities and confirmed on 18^th March 2025 that they did not wish to make any further submissions in respect of those authorities.

Each party had lodged written submissions in respect of this issue, and further written submissions in February 2025. The local authority submitted that the first of the three options set out in paragraph 12 above is the approach this court should adopt, being the most recent decision and one which considers the previous authorities. The Guardian for A submitted that if the Court were to conclude that a welfare evaluation were required, that should be addressed within this Judgment. The Guardian drew the Court’s attention to the oral evidence of Z that he knew he was not A’s biological father, but nonetheless, proceeded to register her birth and to the inconsistency with that position when compared to his initial statements in proceedings. On behalf of Z it was submitted that the approach summarised in paragraphs 12(a) and (b) were wrong, and further, that there was no adequate evidence from the Guardian on welfare. In any event, it was submitted, in light of the evidence regarding the relationship between A and Z, his parental responsibility should not be removed. In particular, A sees her as a father figure and had believed him to be her father; Z has always viewed himself as A’s father; and there were positives in his parenting.

Section 2 of the CA 1989 sets out the following regarding parental responsibility:

Parental responsibility for children

Where a child's father and mother were married to, or civil partners of, each other at the time of his birth, they shall each have parental responsibility for the child.

Section 4 of the CA 1989 provides as follows:

Section 10 of the Births and Deaths Registration Act 1953 provides as follows:

Section 10A(1) concerns the re-registration of a birth where no person has been registered as the father.

The starting point, in my judgment, are the terms of the relevant statute: section 4 of the CA 1989:

“(1)

Where a child’s father and mother were not married to, or civil partners of, each other at the time of his birth, the father shall acquire parental responsibility for the child if:

(a)

[except where subsection (1C applies,] he becomes registered as the child’s father under any of the enactments specified in subsection (1A);

(b)

He and the child’s mother make an agreement (“a parental responsibility agreement) providing for him to have parental responsibility for the child; or

(c)

The court, on his application, orders that he shall have parental responsibility for the child.

…

(2A) A person who has acquired parental responsibility under section (1) shall cease to have that responsibility only if the court so orders.”

Two of the enactments identified in in s.4(1A) are s.10(1)(a), (b) and (c) and s.10A(1) of the BDRA1953. The exemptions referred to in s.4(1)C are that parental responsibility shall not be conferred pursuant to s.4(1) where a court has previously declined to award parental responsibility to the father prior to his registration as the child’s father or an order has been made removing his parental responsibility.

Section 4(2A) of the CA 1989 was included by s.111 of the Adoption and Children Act 2002. Although not part of the legislation, the explanatory note to that Act provided as follows regarding that provision:

“Parental responsibility of unmarried father

26 Section 111 amends section 4 of the Children Act 1989 to provide that a father who is not married to the mother at the time of the child’s birth is to have parental responsibility if registration or re-registration of the birth takes place according to the provisions of the Births and Deaths Registration Act 1953 and equivalent provisions for Scotland and Northern Ireland. Parental responsibility granted to an unmarried father under these provisions may only be terminated by the order of a court. Applications for the termination may be made by any person who has parental responsibility for the child or, with leave, the child.”

Ordinary principles of statutory construction must apply to the interpretation of s.4 of the CA 1989. The objective of that interpretation is to arrive at the meaning which conveys the legislative intention. In respect of that task, in  R(O) v. Secretary of State for the Home Department [2023] AC 255, the Supreme Court, Lord Hodge stated (paragraphs 29 to 31):

The Court should seek to give effect to the natural and ordinary meaning of the words used. When an Act aims at curing a defect in the law, any ambiguity is to be resolved in such a way as to favour that aim. The act must be construed as a whole, thereby avoiding internal inconsistencies. Words which can reasonably bear one meaning must be given that meaning, whatever the result.

There is no definition of the term ‘father’ in the CA 1989. However, it is difficult, in my judgment, to assert that the words “child’s father” (in, for example, s.4 or s.2) are ambiguous, in the sense of being unclear. The words may, however, in my judgment, reasonably be said to bear more than one meaning: for example, genetic father; legal father; adoptive father.

My initial response to the question, “what is the ordinary and natural meaning of the words “a child’s father?”” was that those words must refer to someone who is, in fact, or in law, the child’s father. That interpretation encompasses a biological father, or an individual who, whilst not a biological father, but is the child’s legal father, for example, under the HEFA or by other application of law, such as adoption.

This interpretation (that set out in para. 31) whilst not identical to, is consistent with the approach taken by Theis J in RO v PA and by the analysis of Ms Debra Powell KC in KL v BA. Most importantly, however, it is also, in my judgment consistent with the legislative background which appears to have been to set out a means through which unmarried parents could each have parental responsibility for children within their family, putting unmarried fathers in (via the application of statute) the same position as fathers who were married to a child’s mother at the time of that child’s birth.

What, then, of the position of an individual who genuinely believed themselves to be a child’s father, is recorded on a birth certificate as the child’s father, but later discovered that they shared no biology with that child and is not, otherwise, their legal father?

Under the legislation set out above, such an individual could only have been named on the child’s birth certificate if any one of the following conditions were satisfied:

In my judgment, there are two competing views, each of which, in my judgment, are supported by some rational argument. First, under the statutory scheme both the mother and the person named on the birth certificate would have needed to have stated to the Registrar, or made a declaration, that that person was the child’s father. Such an individual could come within the scope of the term “child’s father” because they had asserted and set out that that was the case. By virtue of that statutory declaration, or statement, the Registrar had been informed that that man was the child’s father and he thereby acquired parental responsibility pursuant to s.4 of the CA 1989.

The second is that, if that statement, or declaration was wrong, even if the error were a genuine mistake, such a person could never come within the definition of ‘father’ because, simply, they never were the child’s biological (or legal) father and, the statutory declaration, although believed to be true at the time, was wrong. On this second view, in this case, Z, could never have held parental responsibility for A. He never was her biological or legal father; he (and, on the evidence, the mother) simply made a false statement that he was, knowing that statement to be false. At most, he has only regarded himself as A’s father.

Section 4(2A) CA 1989, arguably, provides some support for the former interpretation. In that section, the draftsman has chosen to refer to “a person” who obtains parental responsibility for a child by being named on the birth certificate, arguably, thereby identifying an intention that such a person may not be a “father”. Therefore, it is submitted, it is clear that the legislature had anticipated that an individual other than a legal or biological father could acquire parental responsibility in such a way. Further, such a person could only lose the parental responsibility so acquired by court order.

As set out above, judges, in three different cases, for clearly articulated and rational reasons, have come to three different views about the interpretation of these provisions.

To reach my conclusion, I returned to principles of statutory interpretation. The meaning of the words “a child’s father” should be consistently interpreted in the CA 1989. The interpretation should be one which gives the words their obvious and natural meaning, not one which is overly complex or legalistic. In this context, the CA 1989, the public policy reasons underpinning the principle that a statute should be readily understandable by members of society are particularly strong.

I consider that my initial response to the question identified in paragraph 31 is the correct one: the words ‘a child’s father’ means an individual who is either legally or biologically the child’s father. The interpretation of ‘a child’s father’ to mean someone other than the biological or legal father of a child, in my judgment, adds a layer of complexity and ambiguity to what are otherwise clear words, and whose ordinary and natural meaning are readily understood within society. It has the potential to require the word ‘father’ to have different meanings within the Act. Further, the interpretation that the word ‘father’ refers to a child’s biological or legal father does not, in my judgment lead to an irrational or unreasonable result. It means simply that those men who are not, legally or biologically, the father of a child, will not hold parental responsibility for them under s.2 or s.4 of the CA 1989. That does not preclude them from otherwise acquiring that parental responsibility for that child through other provisions within the Act, such as through a ‘live with’ order. Equally, they are not prevented from providing for a child: see s.3(5) of the CA 1989. As to the consequences where there have been genuine mistakes as to biological paternity, see paragraph 42-44 below.

Finally, I consider that this interpretation is most likely to give effect to parliamentary intention. The contrary interpretation I consider is less likely to be consistent with that intention. I consider it unlikely that Parliament intended to establish a provision which enabled individuals with no parental connection to a child to acquire parental responsibility other than within the careful statutory scheme through which such rights can be acquired. The purpose of the statement or declaration to the Registrar at the registration of a child’s birth, is to provide some (albeit not definitive) evidence of paternity. I recognise the force of the submission that the provisions of s.4(2A) and use of the word ‘person’ may suggest that if that non-definitive evidence is proved to be wrong, parental responsibility can be removed by the Court. The word ‘person’ does not, however, preclude a biological or legal father. On balance, and having regard to the need for consistency throughout the Act, clarity, and, the ordinary meaning of the words, (and, to a the secondary weight of the explanatory note) I adopt the interpretation set out above.

I recognise that this interpretation may mean that some (married or un-married) men may, honestly have believed themselves to be a father of a child, and to hold parental responsibility and may have exercised that responsibility, but, at a later date, discovered that they did not hold that parental responsibility. He (and the mother) may have believed him to be the child’s father. Equally, one, or both of them may know that he is not the child’s father.

At the outset of her Judgment in RO v PA, albeit it in a different context (a case concerning an application for non-parentage of a child who was born through assisted fertility treatment abroad, albeit with assistance from a UK Fertility Cllinic) Theis J stated as follows:

“2.

This case highlights, once again, the need for parties embarking on fertility treatment, in particular involving a clinic outside the United Kingdom, to consider carefully the legal relationship they will have with any child born as a result of such treatment.

…

3.

It may be stating the obvious that the availability, or not, of such information may have lifelong implications for the child, relating to matters such as identity and any medical conditions. It may be said that those embarking on such fertility treatment have, at the very least, a moral responsibility to any child born as a result of such treatment to have considered these matters at the early stage of any such treatment. Additionally, those clinics that operate here may need to carefully consider what information they give to people who seek their advice who they suggest and/or recommend should seek such treatment abroad.” (Emphasis added)

I have set out this passage because of the emphasis it places upon the responsibility of adults involved in decisions about a child’s conception and birth.

Paternity of a child is an important part of a child’s identity. Statements or declarations made regarding that fact have significant, sometimes life long, consequences for the child, father and other family members. It is right, in my judgment, that members of society should be expected to reflect on those statements, to assure themselves, as much as they can, of the truth of them. Further, it is, in my judgment, appropriate that society expects its members to exercise care and truthfulness in respect of the registration of a child’s birth: formality in respect of such important matters as registration of identity and paternity is legitimately expected. It is important that documents recording those matters are accurate. (H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74). An interpretation of s.4 which expects such accuracy is more likely, in my judgment, to reflect parliament’s intention, than one which suggests that careless or ill thought through assertions made to a Registrar can give rise to parental rights, still less one where dishonest statements are made.

I recognise that the underlying facts of this case are unusual. Further, this is an area where there has been conflicting decisions. For those reasons, I have set out alternative conclusions so that clarity for A can be achieved without further delay, in the event that my interpretation of s.4 is not correct.

My alternative conclusion, is set out below. First, however, I set out the following:

I consider that, in those circumstances, once it has been established, on evidence, that Z was neither A’s legal nor her biological father he could lose his parental responsibility in two ways. The first is through the Declaration of Non-Parentage. That declaration is binding on all. I consider that, without more, that court order would satisfy s.4(2A) of the CA 1989 such that, on its making, Z would cease to hold parental responsibility for A.

However, even if a separate order is required, and a welfare analysis required, I would make the Order discharging Z’s parental responsibility.

Having regard to s.1 of the CA 2002 I would consider it in accordance with A’s welfare, that I make that Order. I do not consider that a further hearing would be necessary. I have heard the evidence of A’s Guardian. I do not consider the description of that evidence within the submissions lodged on behalf of Z to be a fair or accurate reflection of the evidence given. I am fully aware of Z’s views, and heard detailed and lengthy evidence about his parenting and parenting ability. There is nothing more I would need before making a decision.

A knows Z. He is clearly an important person in her life, and she believed him to be her father. She understands, in a way appropriate for her age, that, biologically, he is not. She does not know, on the evidence before the Court, how she was conceived, or that the mother and Z deliberately lied about her parentage over a prolonged period of time. Contact with Z appears to lead to complex emotions for A.

A has a pressing need to recover from very serious harm which she experienced whilst in Z’s care, including sexual harm, and indirect emotional harm harm, having lived in a household where her close siblings were subjected to physical harm. There was evidence before the Court that the mother inflected physical harm upon her. I have made the detailed findings set out in the January 2025 Judgment. A has a need to recover physically and emotionally from that harm and then to be able to focus on normal childhood experiences and seek to reach her potential in education and all other aspects of her development and life. She needs skilled care and consistent relationships with adults whom she can trust to enable her to begin that difficult journey.

Removing Z’s parental responsibility will mean that he has less automatic right to play a role in her life and make decisions about her life. However, he remains an important person in her life and can, as I understand the local authority submissions, still play a part within it. Contact can, subject to A’s needs, continue.

The Declaration of Parentage corrects something which was false and known to be false. That, in my judgment, is likely to be a positive change for A in the future, as it gives her a clearer and more truthful account of her parentage. A may feel a sense of loss, now or in later life, when she comes to understand that Z’s parental responsibility has been removed. Again, however, that does not mean that Z would cease to be an important person in her life. He can still do so. With support, A can come to understand the decision made by the court and the reasons for it.

Z and X show exceptionally little insight into A’s needs and experiences. I do not consider that either of them, individually, or together, can meet her needs. I have little confidence in Z’s ability to exercise parental responsibility consistently in accordance with A’s needs. I recognise that he acted, at some points, in a more positive way than X regarding events in the household, as recorded in the Judgment. Ultimately, however, he failed to protect her and her siblings and subsequently showed little recognition of the harm and consequences of the failures in his and X’s parenting have had upon A and her siblings. For all these reasons, I consider that it would be in accordance with A’s welfare that Z’s parental responsibility be discharged.