Child A and Child B (Parental Responsibility and Welfare), Re

This case concerns two young children, A born in 2018 and aged nearly 7, and B born in 2020 and aged 5.

The children’s mother is M. B’s father is F1; A’s father is either F1 or his identical twin brother, F2. It has not been possible to establish A’s paternity either by DNA testing or by an examination of the circumstances of her conception. At a fact-finding hearing last year I found that both brothers had had sex with M within four days of each other in the month when A was conceived.

The issues to be determined at this final hearing are:

[This part of the judgment has been redacted in order to preserve the anonymity of the family members. The redacted passage explains the difficulties in securing interpreters fluent in the first language of each of the parties, and the consequent delay to the proceedings].The evidence and submissions were completed on day four, and judgment was reserved.

Once again, I am enormously grateful to all of the interpreters who approached their task with skill and commitment. I am also grateful to the lawyers who undertook research into the legal issues arising in this case. F1, who represented himself, was articulate and courteous and put his case clearly and effectively.

The background to these proceedings is set out in full in the judgment handed down on 30 April 2024 following the fact-finding hearing, which should be read together with this judgment. That judgment was published under the citation Child A and Child B (Paternity: Identical Twins) [2024] EWFC 132 (B). What follows is a headline summary.

M met F2 and F1 in 2017. [During a period in] 2017, as I have found, M had sex with each brother. A was conceived at this time. It is equally likely that each of the brothers is A’s biological father.

M lived with F1 [for a period in 2018 until] shortly before A’s birth. F1 was named on her birth certificate. Thereafter M secured her own housing and the parties lived separately, but they continued their relationship and in 2020 B was born. The children divided their time between M’s home in London and F1’s home in Y County. The relationship between the adults came to an end in early 2022.

M and F2 lost touch from early 2018 until 2020 when they resumed contact with each other, and in 2021, unknown to F1, M arranged for a DNA test which appeared to prove that F2 was the biological father of A. They were not aware at the time that standard DNA testing could not distinguish between identical twins. Thereafter M and F2 – but not F1 – treated F2 as A’s father, and he began to spend time with both children.

The proceedings commenced in April 2022 after a dispute between M and F1 as to the children’s arrangements. M raised the issue of A’s paternity and in July 2023, after making an application for a declaration of parentage, F2 was joined as a party to the proceedings.

During the course of the proceedings the parties explored whether specialist DNA testing could distinguish between the two brothers. By the end of 2023 there was no clear route to testing: the parties had obtained a quote from DNA Legal to undertake bespoke testing of the entire genome in the hope that this might identify markers that could differentiate between the two brothers’ DNA, but this testing was very expensive, there was no source of funding and a definitive result could not be guaranteed.

In February 2024 a fact-finding hearing took place. In my judgment, handed down in April 2024, I found that both F2 and F1 had had sex with M during the period when A was conceived, and so it was equally possible that either was A’s biological father. I also found that both M and F1 had struggled from time to time with the children’s behaviour and that both had used physical chastisement to discipline them. I did not find either M or F1’s allegations against the other of domestic abuse (coercive and controlling behaviour) proved.

Following the fact-finding hearing the parties made some further enquiries as to the possibility of specialist DNA testing. It remains the position that although such testing is theoretically possible, the cost is very high and the results less reliable than in the case of standard testing. An approach was made to the Ministry of Justice for assistance with funding, but perhaps unsurprisingly that was declined.

On 24 April 2024 the children were joined as parties to the proceedings and a children’s guardian appointed. Mr Shields’ initial report was filed on 11 October 2024, but at that stage he was unable to make recommendations. He did so in a final report filed on 10 January 2025, and a dispute resolution appointment took place on 5 February 2025. There was no agreement between the parties on any of the issues, and this hearing was listed.

For a period of time following the fact-finding hearing it appeared that there might be some improvement in family relationships. In 2024 the brothers were both present at a party for their sister S. Both children were also present. S wrote in her witness statement for these proceedings, “It was the best birthday I have ever had, as it was beautiful to see both of my brothers talking to each other. The atmosphere was warm and joyful.”

However in the following months there were two occasions when disputes arose between M and F1 over the children’s arrangements. The evidence as to what happened on the first occasion is unclear: some sort of incident is referred to obliquely in later police records but M does not mention it in her written evidence, and no party was asked about it in any detail at the hearing.

On the second occasion, following a birthday party for A, F1 took both children to his home in Y County without M’s consent. F2 and M made a complaint to the police and F1 was arrested; for some months he was subject to bail conditions which prevented any contact with the children. The police disclosure in the bundle is not complete, but F1 says that the police have now taken the decision to take no further action, and it is agreed that the bail conditions are no longer in place.

Early in the proceedings an interim contact order was made providing for M to make the children available for monthly contact with F1. That order has remained in force, although for a period in 2024 it was overridden by the police bail conditions. When those were lifted, the parties were unable to make arrangements between themselves for contact to resume, but did so with the assistance of their legal representatives at a hearing on 5 February 2025. Contact then took place between F1 and B on two occasions in February and March 2025, supported by B’s aunt, S. A was present at one of the handovers and saw F1 briefly. The parties have different views as to the success of these arrangements.

F2 has continued to have unrestricted contact with both A and B. It has become clear as a result of the guardian’s enquiries that M has given A the firm and explicit message that F2 is her father.

On the issues of parentage and parental responsibility, as to which there are a range of possible outcomes, each party has made submissions in the alternative. I have attempted here to summarise the core of each party’s case on those issues, and on the children’s living arrangements.

M and F2 ask the court to make a declaration that F2 is A’s parent, and a declaration that F1 is not. If F1 currently has parental responsibility for A they ask the court, by whatever means it considers possible, to remove it and to confer parental responsibility on F2.

M’s position is that F1 should not have any contact with A, and that his contact with B should be professionally supervised. She says that she and F2 should continue to be free to make arrangements between themselves for both children to spend time with F2.

F2 supports M’s position in respect of the children’s contact with F1. He seeks a child arrangements order for A only if I decide that he cannot acquire parental responsibility in any other way, and provided that a child arrangements order is a legally possible means of conferring parental responsibility on him. Similarly, he seeks a child arrangements order permitting him to have contact with B, and to take him away on holiday, only to the extent that this is necessary in the light of F1’s opposition.

Although he has not made a formal application for a declaration of parentage, F1 seeks for A’s birth certificate to remain unaltered and makes it clear that he wishes to be treated both legally and on the ground as the father of both children. If he does not already have parental responsibility for A as a result of registration on her birth certificate, he seeks whatever orders are necessary to enable him to make decisions for her in consultation with M.

F1 seeks an order for both children to live with him in Y County, and spend every third weekend with M in London.

The guardian’s position on all issues shifted significantly during the course of the hearing. In his written report he recommended that the court make a declaration of parentage in favour of F2 and that F1 should have no contact with A, and supervised contact only with B. However in closing submissions on his behalf Mr Bagchi sought the following:

Legal parentage is established, at common law, by a genetic link between parent and child. This common law principle is the default starting point: P v Q and F (Child: Legal Parentage) [2024] EWCA Civ 878.

FLA 1986, s55A(1) gives the court power, on the application of the putative parent, the child or other person who has sufficient personal interest, to make a declaration “as to whether or not a person named in the application is or was the parent of another person so named” (a “declaration of parentage”).

The court’s decision to make a declaration of parentage (or non-parentage) is a matter of considerable significance. In H v An Adoption Agency (Declaration of Parentage Following Adoption) [2020] EWFC 74 MacDonald J said the following:

Where the person whose parentage is to be established is a child, FLA 1986, s55A(5) provides the court with a discretion not to hear the application:

However, where the application is heard and parentage is proved, the court has only a limited discretion to refuse to make the declaration. S58(1) provides:

Finally, s58(3) provides:

In Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43 the House of Lords identified (at least) three forms of “natural” parenthood: genetic, gestational and social/ psychological, distinguishing these from legal parenthood. In P v Q and F the Court of Appeal acknowledged that parenthood may be manifested in a number of different ways, but pointed out that:

For the most part, the courts have interpreted FLA 1986, s55A as being concerned solely with the child’s legal parentage. This is particularly so in the context of assisted reproduction: see for example Re A & Others (HFEA 2008) [2015] EWHC 2602 and the subsequent cases before the then President, Sir James Munby, concerning the operation of HFEA 2008.

An exception to this approach is a line of first-instance authority which suggests that a s55A declaration of parentage may be made on the basis of an adopted child’s biological parentage, even after legal parenthood has shifted from the birth parents to the adoptive parents. This approach was taken by MacDonald J in H v An Adoption Agency and by Theis J in Re E (Declaration of Parentage) [2022] EWFC 180. In H v An Adoption Agency MacDonald J characterised the child’s biological (pre-adoption) parentage as an issue of “fact”, which fell within the scope of a declaration under s55A, and contrasted this with his “legal” parentage, resulting from the operation of ACA 2002, s67. In P v Q & F [2024] [2024] EWCA Civ 878 the Court of Appeal cast some doubt on this reasoning, suggesting (paragraph 15) that the question of whether s55A could encompass declarations other than those of legal parentage might fall to be resolved definitively on another occasion.

Whatever the position as regards biological but non-legal parentage, there is as yet, as far as I am aware, no authority to support the proposition that parentage may be established for the purposes of FLA 1986 s55A on the basis of a psychological parent/ child relationship alone. In J v C [2015] 1 FLR 674 Peter Jackson, as he then was, rejected an application which was framed as an application for “a declaration of psychological parenthood”:

There is a substantial body of case law supporting the proposition that in most circumstances where parentage is disputed or uncertain it will be better for the truth to be established, and (subject to his or her age and level of understanding) for the child to know the truth. In Re L (A Child) (Human Fertilisation and Embryology: Declaration of Non-parentage) [2016] EWHC 2266 (Fam) [2016] 4 WLR 147 the then President Sir James Munby said:

There are, however, a minority of cases where the court has declined to make orders which would enable parentage to be established, or, where it has been established, for that knowledge to be conveyed to a child. In D (Parentage: Local Authority Application) Poole J refused a local authority’s application for DNA testing to establish whether the sperm of the child’s father or grandfather, both of which had been used in artificial insemination, had brought about the pregnancy. The local authority did not have sufficient personal interest in the outcome of the testing, and none of the adults supported it.

In J v C (Void Marriage: Status of Children) [2006] 2 FLR 1098, a case in which the children’s father was revealed, after their births, to be transgender, Wall LJ said:

The significance of birth registration where there is a dispute about parentage has been explained recently by Peter Jackson LJ in P v Q & F:

The law is not yet settled on the issue of whether a non-parent, erroneously registered as a father on the child’s birth certificate, retains parental responsibility until it is removed by an order of the court. Two High Court decisions, RQ v PA and another [2018] 4 WLR 169, [2018] EWFC 68 and Re G (Declaration of Parentage: Removal of Person Identified as Mother from Birth Certificate (No.1)) [2018] EWHC 3360 (Fam), contain obiter observations which suggest that in those circumstances parental responsibility is void ab initio. Two circuit judges, one sitting as a s9 Deputy High Court Judge, have reached the opposite conclusion. In Re C [2023] 3 WLR 1, HHJ Moradifar, sitting s9, decided that the removal of parental responsibility from such a person would require an order of the court under CA 1989, s4(2A), but that the court was not required to undertake a welfare analysis. In Re SB (No 2) [2023] EWFC 58B, which is not strictly citable, HHJ Case agreed that an order was required to remove parental responsibility, but decided that the court had to be satisfied before making the order that it was in the child’s best interests.

In KL v BA [2025] EWHC 102 Debra Powell KC, sitting as a Deputy High Court Judge, reviewed all of the above authorities and concluded that a non-father mistakenly named on a child’s birth certificate has never acquired parental responsibility, and so no order is required to remove it. The Court of Appeal has, however, granted permission to appeal that decision and the case will be heard there later this year.

CA 1989 provides different routes for conferring parental responsibility on those who do not have it, depending on whether or not they are parents or non-parents.

CA 1989, s4(1)(c) gives the court power to make an order for parental responsibility in favour of a father who was not married to the child’s mother at the time of birth. The threshold for such an order is relatively low, but the court will consider factors such as the father’s commitment to the child, his relationship with the child and his reasons for seeking the order: Re C and V (Parental Responsibility and Contact) [1998] 1 FCR 52, [1998] 1 FLR 392.

If the court makes a child arrangements order naming the child’s father as a person with whom the child is to live, it must also make an order under s4(1) conferring parental responsibility: s12(1). If a child arrangements order provides for the father to have contact with or spend time with the child, the court has a discretion as to whether or not also to award parental responsibility: s12(1A).

A person who is not a parent but is named in a child arrangements order as a person with whom the child is to live will have parental responsibility for the child for so long as the order is in force: s12(2). If the court makes an order for a non-parent to have contact with or spend time with the child, it may order that the non-parent shall have parental responsibility for the child for as long as the order is in force: s12(2A).

The court has power to limit or restrict a person’s parental responsibility, although the power should be exercised sparingly and only to the extent that it is necessary and proportionate to do so: Re B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam), [2018] 1 FLR 1471.

The court has power under CA 1989, s8 to make orders governing a child’s living arrangements. The child’s welfare is the court’s paramount consideration, and the welfare checklist in s1(3) of the Act applies.

I have now heard each of the lay parties give oral evidence on two occasions, and have read a substantial body of written evidence in which they set out their perspectives on the issues in this case and their hopes for the children’s future relationships with each of them. I have engaged with the parties at several interim hearings, through legal representatives and sometimes directly, and have seen how their positions have evolved over the course of the litigation.

It is clear to me that this litigation has imposed a significant burden on each of the three parties. In the case of F2 and F1 it has affected their own sibling relationship, which was previously a very close one, and caused distress to other members of their family. I am also of the view, however, that that relationship is recoverable. F1 and F2 remain integral members of a close-knit and supportive family which has firmly refused to take sides. I suspect that in the long term the brothers’ underlying love for and loyalty to each other will prove stronger than their current positions would suggest.

M is a delightful, warm, engaging person. I have no doubt, despite the findings I have made about her struggles from time to time to manage the children’s behaviour in their younger years, that overall she is a devoted and loving parent.

Unfortunately, however, M is not a very truthful person. I gave examples in my judgment following the fact-finding hearing of lies told to bolster her case. During this hearing there were a number of occasions when I simply could not believe M’s account. There were inconsistencies between her written and oral evidence, and even between answers given a few minutes apart. On one occasion, to avoid criticism for her lack of support for F1’s contact with F2, M gave an account of what had happened at the hearing on 5 February 2025 that I knew to be a fabrication, because I was there.

M’s tendency to lie to avoid a difficult situation or to gain an advantage has manifested itself in her interactions with others and has been a significant contributor to the current situation. Reviewing the history of these parties’ interactions with each other, it is clear to me that M bears the primary responsibility for the difficulties, by misleading both F1 and F2 about the relationships she has had with each of them.

M has also shifted her position in relation to A’s paternity as her views about each putative father have shifted. I remind myself that until 2022 M was content to promote F1 as the primary paternal figure in both children’s lives. Since her relationship with him broke down in early 2022 she has done her best to exclude him, and to foster F2’s relationship with both children to the exclusion of his – even though F1, and not F2, is B’s father. M has made it clear in her written and oral evidence that she rejects my findings on the paternity issue and that she will continue to promote F2 as A’s father. I found myself wondering whether that apparently fixed position might shift again in future, if her relationship with F2 deteriorates.

M, in my judgement, lacks insight into the children’s long-term emotional needs. She has made significant decisions about parenting and paternity that have been based on her own immediate needs rather than theirs. There is a strand of evidence running through these proceedings that a significant driver for M is financial security, and that she will align herself with whichever putative father she sees as the more reliable provider at the time. That is perhaps understandable, up to a point, given M’s financial vulnerability, but it is not a reliable basis for making decisions about parentage.

F1 has been very critical of M; in his written evidence he makes a number of allegations about her care of the children that are not supported by independent observations of social care professionals or school staff. Underlying those criticisms, however, is F1’s understandable sense of resentment at his exclusion, without any real basis, from his son’s life, and at M’s determined efforts to replace him with F2 as a father figure for both A and B. In that context F1’s concern about M’s ability to meet the children’s emotional needs is justified.

F1 is the only one of the parties who was prepared in his oral evidence to accept my findings on the issue of paternity, in the sense that he accepted the possibility that he is not A’s father. The guardian’s concern that he might tell the children about the uncertainty over A’s paternity is, I find, not well-founded. F1 feels strongly about this issue, but so does M; and unlike M he has not sought to induce a firm belief either way in the children. I am confident, having heard his evidence that he understands the need to shelter the children from the impact that this issue will have on them, until there is agreement between the adults about what they should be told.

F1 has not criticised F2. He refused to cross-examine him and when asked how he felt about him, he said simply “I love him. He is my brother”.

F2 struck me at this hearing as torn. He expressed stronger views about his brother than I have heard him express before: he said, firmly, that he thought F1 was “lying” about the relationship he had had with M. There is evidence that suggests that outside of the courtroom, and since the fact-finding hearing, F2’s attitude to F1 has been less stark.

F2 is, I recognise, in a very difficult position. He has found himself aligned with M against his brother. He told me in evidence that he did not accept my finding on the issue of paternity, although he was less categorical about this than M. When I asked why, he found it difficult to answer but then said he believed that F1 had not told the truth about when his own relationship with M began and ended. That is a harsher position than the one taken by F2 at the fact-finding hearing, and I concluded that he had been driven into it by his need to keep on the right side of M.

I have read witness statements prepared by F2 and F1’s mother, KR; their sister, S ; and F1’s partner, BP.

I was told that KR did not wish to give oral evidence, and I did not require her to do so. Her views are expressed clearly in her witness statement. At the end of it she says:

I heard oral evidence from BP, whose evidence was brief and limited to a narrow issue about the plans for the date when F1 took the children to Y County.

I also heard oral evidence from S. She was, in my view, a very impressive witness. She has been supporting contact between F1 and the children, and more recently F1 and B, and she gave evidence as F1’s witness, but there was no sense that she had taken a side in the dispute before the court: on the contrary, she was entirely child-focused and clearly committed to supporting both her brothers as best she could in the difficult situation in which they have found themselves. She was reflective and insightful and had clearly thought carefully about how the situation could be managed in the children’s best interests. She felt strongly, both that it would be far better for A to have certainty about her parentage if that were possible, and that both children are currently too young for the uncertain reality to be explained to them.

S gave a full and detailed account of both recent contacts between F1 and B. I accept her account, which struck me as fair and balanced. In particular I prefer her evidence of the interactions between M and F1 at the handover (they barely spoke) to M’s description of F1 “shouting” at her.

The family members have not had access to the findings I made in 2024, but they are aware that it has not been possible to establish which of F2 and F1 is A’s biological father. The issue has not prevented A and B from attending family events when both F1 and F2 are present, and S made it clear that whatever the truth of A’s paternity, both children are loved and valued members of the family. I was confident, having heard her evidence, that the paternal family as a whole is well-equipped to support and nurture these children and to manage the uncertainty surrounding their paternity, even if that persists, as it may well do, into the long term.

The children were joined to the proceedings following the fact-finding hearing, because I was concerned about how the uncertainty over A’s paternity could be managed in circumstances in which it seemed likely that it could not be resolved. As I said at the conclusion of my fact-finding judgment, I was hoping for some assistance from a children’s guardian on this issue.

When he filed his first report on 10 October 2024 Mr Shields had met the children once at school and introduced himself, but had not yet met any of the adult parties. He said in his report that his “provisional” thoughts were that “concessions need to be made [on the issue of paternity] to provide A and B with certainty.” The parties needed to agree who was to be deemed to be A’s father. He said at the conclusion of his report that, in the absence of “clear reporting directions” from the court he was unable to carry out a welfare analysis, and suggested that the court schedule a contested final hearing.

At the first dispute resolution appointment on 15 October 2024, which Mr Shields did not attend, I made it clear to his counsel that the court was not in a position to determine which of the two putative fathers was A’s father, and that a welfare analysis was requested on that basis. The order made on that occasion set out the issues on which the guardian was requested to advise the court, which included the children’s understanding of their family relationships, the nature of those relationships, recommendations as to their living arrangements, and assistance with the development of a narrative “with a view to mitigating any potential for emotional harm caused by the difficulties in establishing paternity”.

Mr Shields’ final report was filed on 10 January 2025. Before preparing his report he met each of the adults on one occasion, via a remote link and with an interpreter, and saw the children again at school. He discussed family relationships with them in general terms and obtained, as far as possible, their wishes and feelings about their living arrangements.

In his report Mr Shields repeated the view that it would be of benefit to the children for their relationships to each of F1 and F2 to be defined at this hearing, “to provide them with some degree of certainty in the remainder of their minority”. He recommended that a declaration of parentage should be made in favour of F2, with F1 reverting “in legal and practical terms… to either being her paternal uncle or stepfather”. Because he thought F1 was unlikely to accept such a role, he recommended that A should have no contact with him. B should have contact with his father, but only if the court were satisfied that F1 would not do anything to undermine B’s understanding of family relationships. On the issue of a narrative for the children, Mr Shields said that this could only begin to take shape once the court had determined the role which each of the adults would be playing in the children’s lives.

At the outset of his oral evidence, having heard the evidence of the parties and family members, Mr Shields modified his recommendation so that instead of recommending no contact between A and F1 and limited, potentially supervised contact between B and F1, he was now recommending that both children have unsupervised contact with him. He had, it seems, revised his view of F1 having heard him and the paternal family give evidence.

Mr Shields maintained his position that it would be better for A if the court were to determine her paternity, and make a declaration if that were legally possible, at this hearing. I asked him at the conclusion of his evidence whether he saw any disadvantages to A in growing up with no knowledge of the competing claims to paternity of the people she currently knows as her father and her uncle, particularly in circumstances where future developments in technology might mean that her current understanding is proved to be false. Mr Shields was clear that he saw no benefit, certainly for the foreseeable future, in A being given any message other than one which confirms F2 as her father.

I have struggled with this aspect of Mr Shields’ evidence. I also find myself puzzled by what seems to me to be an imbalance in his approach to the issue of paternity. Both putative fathers have been tenacious in their commitment to establishing a paternal relationship with A. F2, with M’s support or at her instigation, has instilled a belief in A that he is her father; F1 in contrast has not sought to do so, although until his contact with her ceased during the course of2024 he was spending time with her and had the opportunity. In those circumstances Mr Shields’ recommendation that F2’s claim to paternity should be confirmed and F1’s rejected is difficult to understand.

Having reflected on Mr Shields’ report and his oral evidence since the hearing I have concluded that his approach is driven by pragmatism and aimed at maintaining the stability of the children’s current relationships. However in my judgement that approach is unrealistic in the medium to long term. It will simply not be possible to withhold from A, on an indefinite basis, the knowledge that there has been substantial litigation about her paternity. In those circumstances the decisions that the court takes now must, as far as possible, accommodate that reality so that the impact of the discovery, whenever it is made, is mitigated.

When I joined the children as parties to these proceedings I was hopeful that, with the assistance of a guardian, the parties might be able to reach an agreement which allowed each of them to play a role in the children’s lives, and to prepare A jointly for the uncertain truth about her paternity to be communicated at an age when they all felt she was capable of understanding it. Unfortunately, one consequence of the approach taken by Mr Shields has been to raise the stakes: since his report was filed all the adult parties have treated the issue of paternity as a zero sum game in which each can only achieve the outcome he wants by extinguishing the other’s claim.

I have a good understanding of the children’s personalities from the guardian’s report, which sets out information provided by the school, from the evidence of the parties and from the statements of wider family members.

A is an intelligent and sensitive little girl. F2 says that she has a natural ability to form connections with others. The school describe her as a “model of good behaviour” and someone who makes strong friendships. It seems that A may be more aware of what is going on around her than adults sometimes realise. Her aunt S describes a child who is keenly aware of the wishes of the adults around her, and is sometimes careful with her words so she does not upset them. She is fiercely loyal to her little brother and will sometimes speak on his behalf.

A spoke positively about her home with M and her relationship with F2, whom she understands to be her father. She told the guardian that when she sees F1, whom she knows as her uncle, it is “quite good and a little bit bad”. She went on to tell him, unprompted, that B misses his dad (F1). In S’s statement she says that A will sometimes say that her brother wants something, when in fact she herself wants it but feels unable to say. I wondered whether when A told the guardian that her brother misses his father she was speaking also of herself. There is evidence which I accept, including the evidence of family members, that on several occasions A has expressed by her words and actions a strong wish to spend more time with F1.

B is full of energy, and has strong emotions which he is still learning to control; he can become easily frustrated. He struggled to transition from his mother to F1 at the recent contact sessions, after he had not seen his father for some time. The school says that he has matured since starting reception and is now better at managing his feelings, although he was unsettled around February. Like his sister he is capable of making firm friendships with other children and listens well to adults he knows and trusts.

B was reluctant to speak about his family relationships and did not say anything to the guardian about his views.

The children are close and their sibling relationship is very important to them. They have half-siblings, step parents, an aunt and a grandmother on their paternal side, all of whom they know very well; their maternal family I believe are mainly based in M’s home country, and I am not sure what opportunity the children have yet had to develop those relationships. They are being brought up in the Christian faith, and their church community is a central part of their lives.

A and B are part of a blended family. F1 and F2 both have other children, and F1 has adopted his partner’s son. A and B have spent much more time with F2’s family than with F1’s, but they know all of their half-siblings. They are aware that siblings in the same family may have different parents.

The children spent their early years in M’s primary care, but with F1 very much playing the role of father to both children. Although M and F1 did not live together the children frequently stayed with F1 in his home in Y County and at one point A even attended nursery there. They spent substantial periods of time with F1 until these proceedings commenced, when A was four and B two. Throughout that time F1 was a very significant figure in their lives.

It is not clear how and when A’s understanding that F2 is her father developed. As far as the adults are concerned, M and F2 began to treat him as A’s father after taking the DNA test in 2021 (when A was three), and he was introduced to her at that point. However F1 was still at that stage spending substantial time with the children and acting as the father of both, with no idea that F2 also had a claim to paternity. It is likely in my view that although A has been given the firm message in recent years that F2 is her father, she retains some memories of the time when it was F1 who played that role in her life.

Both children know, it seems, that F1 is B’s father. However M has, at the very least, failed proactively to support that relationship and even before bail conditions were imposed in 2024 B’s relationship with his father was hanging by a thread: the monthly contact ordered by the court frequently did not take place because M did not engage with F1’s attempts to arrange it. At the same time there is considerable evidence which suggests that M is positioning F2 in a paternal role for B as well as for A. On a basic level he is currently spending far more time with F2 than with his own father. In F2’s statement he repeatedly refers to B spending time with his (F2’s) children as “his siblings”. According to both S and the children’s grandmother, KR, this is putting a strain on F2’s relationship with his wife, who feels that M is putting F2 in a position where he has to act as B’s father – something she is strongly against, as it disrupts their family structure. S says that it was difficult when, at M’s instigation, B gave F2 a Father’s Day card.

M and F2 are categorical in their description of F2 as A’s father and there is nothing in M’s statements to suggest that she is prepared to accept the possibility that he might not be. For example, M says in her latest statement that “[F1] continues to regard A as his daughter and I cannot stress or reiterate it enough that A is not his child and therefore he does not have any involvement in her life… A only sees [F2] as her father and they have such a great bond.” [emphasis added]. Having heard her evidence, I am quite clear M has no intention, either now or at any point in future, of telling A that there is a possibility that F2 is not her biological father.

F2 makes his position clear in his third witness statement, saying that he fears that A will be very confused if she is told either that F1 is her father or that it is not clear who is her father. He says that part of the reasoning behind his application for a declaration of parentage is ”so I can apply to change the birth certificate, so my name is added, and F1’s name is removed. This will reflect A’s understanding of the family dynamics and what she understands the reality to be.” In his final statement he says, “I confirm that I still very much wish to obtain a declaration of parentage for A, so it is confirmed that I am her legal parent. I genuinely believe that I am her father, she believes that I am her father. If there was no declaration to confirm so, this may cause her some confusion as she grows, especially if F1 continues to be named on his [sic] birth certificate.” In her final statement M says, “I also support [F2’s] application for a declaration of parentage so that we can apply to have the birth certificate amended and the rightful biological father inserted.”

In my earlier judgment I found that both M and F1 had resorted to physical chastisement of the children to manage difficult behaviours when they were very small. I found however that both parents had the capacity to provide good care for the children with appropriate support and no party, including the guardian, has suggested at this hearing that the children are at risk of physical abuse. I note that F1 is parenting three other children of his own, and that he has also adopted his partner’s oldest child. The guardian confirmed in his evidence that the only safeguarding issue he considered to be relevant was the risk that the children might be exposed to inappropriate discussion by the adults of the issue of paternity.

In my view, the uncertainty around A’s paternity is indeed the main factor giving rise to a risk of harm to both children, but particularly A. I would frame the risk more broadly. In my view there is a real risk of significant emotional harm to A in future if the issue of paternity is not handled sensitively, and particularly if she discovers in an unplanned way that F2 may not in fact be (or, potentially, is not) her biological father, and that her parents have withheld this information from her.

I also consider that the current presentation of family relationships, in which F2 is treated by M as the father figure for both children and F1 is excluded, is contrary to their interests. Even if B is not being given the explicit message that F2 is his father, M is encouraging the formation of a quasi-parental relationship. Meanwhile B’s contact with his father is so limited and infrequent that the relationship is barely kept alive.

F1 raises concerns about the emotional warmth available to the children in M’s care. He says that he does not believe M offers consistent boundaries or a calm environment. F1’s fears are not supported by the evidence from the children’s school, which is to the effect that the children have always appeared comfortable and happy in M’s care.

I have, however, already observed that F1’s broader concerns about M’s ability to meet the children’s emotional needs generally are well-founded. A basic requirement of parenting is respect for the other parent’s role and their parental responsibility. M has failed to provide F1 even with basic information about his son. It emerged in M’s oral evidence that B has suffered febrile convulsions. I did not remember hearing that before, and when I asked M if she had told F1 she initially said that she had, and then said she had included the information in one of her witness statements so assumed he knew. This was not correct: the only reference to this information anywhere in the bundle is a brief line in a local authority s7 report dated April 2023. There was an occasion last year when B had an accident and attended A&E; M did not inform F1 but instead F2. M’s approach to this issue cannot by any stretch of the imagination be described as showing proper respect for F1’s parental responsibility.

M argues that F1’s actions in taking both children to his home in Y County in 2024 demonstrate a similar lack of respect for her parental responsibility. It is correct that F1 acted in breach of the interim contact order, not only removing the children from a party but taking them to stay with him in Y County without M’s consent. F1’s explanation is that the children were adamant that they wanted to stay with him and would not get out of the car; that account is supported by that of family members, but even assuming that to be the case, F1 could and should have managed their expectations better (and ensured that they did not get into the car in the first place.) However, I bear in mind that this incident took place after a sustained period when F1’s contact with his son had been severely restricted without justification, and that, presumably as a result, both children were missing him and making it clear that they wanted to see more of him. Going forwards, if an arrangement is in place that better meets the children’s needs, I think it less likely that F1 will seek to take matters into his own hands in this way.

S speaks positively about both of her brothers as parents. She describes F2’s “fantastic bond” with both children. His willingness to help M with the care of B is, I am sure, well-intentioned: S observes that he is “trying to do his best to support”. S describes F1 being able to calm B down “quickly and naturally” when he became upset at a contact handover.

In contrast to the issue of paternity, the welfare issues, fortunately, are anything but a zero sum game. Children need to know that they are loved and valued within their families. Research consistently shows that children thrive in families which come in a wide variety of forms. If A is able to form relationships with both putative fathers, and if the information about her paternity is conveyed sensitively and at the right time, I am confident that this will benefit rather than harm her.

It seems to me that it is unrealistic for F1 to be excluded from A’s life. He is, at a minimum, the father of her brother, and part of the wider paternal family that has embraced her. He very much wants to be treated as her father, but he has not sought to disrupt or undermine her current understanding of her paternity.

B needs to see much more of his father than he does now, and that relationship must be given priority over his relationship with F2.

I have been conscious throughout this hearing that while there is significant overlap between M’s case and F2’s on this issue, and the guardian’s position is sympathetic to theirs, F1 who puts the opposing case is unrepresented. In those circumstances I have done my best to identify the authorities and legal arguments that might assist his case.

During submissions there was some consideration of whether this is a case in which, under the welfare ground in FLA 1986, s55A(5), the court should decline to “hear” the application. I am satisfied that this is not a route that I should take. I have held a fact-finding hearing to establish the circumstances of A’s conception, and have subsequently heard evidence and received legal submissions on the issue of parentage. In H v An Adoption Agency MacDonald J held that an application under s55A(5) could be determined as a preliminary issue, but did not explicitly exclude the possibility that the court might make such a determination at a later stage, after hearing the evidence. I am doubtful as to whether that step is in fact within the power of the court, given the terms of s58(1), but even if it is, I am satisfied it is not a course I should take.

The issue then is whether parentage is established, in which case – absent a public policy consideration, which has not been identified – s58(1) provides that a declaration of parentage must be made.

In her skeleton argument filed in advance of the hearing Ms Whelan suggested that what she described as F2’s status as A’s psychological parent might be sufficient in this case to permit the court to make a declaration of parentage in his favour and/ or a declaration of non-parentage against F1. In closing submissions, while not formally withdrawing that argument, she conceded, I think correctly, that there was a substantial body of authority standing in the way of such an approach, and none to support it.

Ms Whelan then developed an alternative argument, based on the court’s obligation to interpret domestic legislation in a way that is compatible with ECHR rights. If the court is unable to find on the balance of probabilities that either F1 or F2 is A’s father, A will be left without a father. That, Ms Whelan suggested, would amount to an interference with her Article 8 rights. In response to my observation that there are many millions of children in the world whose paternity is unknown, Ms Whelan said that A’s situation is different because in her case the pool of potential fathers is a closed pool of two. Her genetic identity is known, and should be recognised. As I understood the argument, Ms Whelan was saying that in those circumstances the arbitrary selection (as it would be) of one father would represent a less significant interference with A’s Article 8 rights than a situation in which A is left legally fatherless.

In my judgement Ms Whelan’s argument, ingenious as it is, is unsustainable. Even working on the basis that A’s Article 8 rights demand that in this case s55A should be read down so as to enable a father to be identified (a basis which I am not convinced is sound), there is no principled reason for the court to identify F2 rather than F1.

The guardian originally supported F2’s application for a declaration of parentage on welfare grounds. In their skeleton argument filed in advance of the hearing Mr Bagchi KC and Ms Hudson accepted that that approach was not sustainable as a matter of law. They suggested that it might be open to the court to make a declaration of non-parentage against F1, but in his closing submissions Mr Bagchi acknowledged the force in the argument that any person seeking such a declaration would be unable to discharge the burden of proof.

The starting point is my finding that each of F1 and F2 had sex with M within the conception window, and therefore that it is equally likely that each of the two brothers is A’s biological parent.

In this case, biological and legal parentage align. If A’s biological parentage could be determined – which is not presently possible – that would also determine her legal parentage.

The fact that F1 is named as A’s father on her birth certificate is of no assistance.

Facts are determined (in civil proceedings) on the balance of probabilities. Mathematical percentages are rarely a helpful model when the court is considering its approach to the fact-finding process: see Re A [2018] EWCA Civ 1718, and I therefore tread with care. However in this highly unusual situation the compelling feature of the evidence on the issue of paternity is the complete and accurate statement of fact that the probability of either brother being A’s father is exactly 50%.

I have considered whether the burden of proof is of any assistance in this case and have concluded that it is not. On an over-simplistic analysis, F2’s application for a declaration of parentage must fail because he cannot discharge the burden of proof. However the Court of Appeal has made it clear in P v Q & F (paragraphs 38 and 39) that the burden of proof relates to the underlying facts, and not to the application. On the facts as I have found them to be, because the probabilities are exactly equal, no party is able to discharge the burden of providing that either F1 or F2 is or is not A’s father.

As a last resort, Mr Bagchi KC and Ms Hudson on behalf of the guardian suggested that the court should make a declaration that:

It was suggested that if such a declaration were to be sent to the Registrar, pursuant to BDRA 1953, s14A, the Registrar might exercise his discretion in such a way as to remove F1’s name from her birth certificate. That would, it was suggested, be a more truthful and accurate presentation of the facts surrounding A’s paternity, as the court has found them to be.

In my judgement there are three problems with that option, the first less significant than the others. FLA 1986, s58(3) prevents a court, when dismissing an application for a declaration, from making any other declaration for which an application has not been made. However I note the Court of Appeal’s interpetration of this provision in P v Q & F as a “due process” provision to prevent declarations being made without the formalities being observed. In this case, all relevant parties have notice of the application and the guardian agreed that if a formal application is required, it can be made.

More troubling is the question of whether this declaration falls within the scope of s55A at all. It is not a declaration that a person named in the application “is or was” the parent of A. It is, in fact, a re-statement of the court’s inability to make a finding as to parentage.

Finally, there is nothing to suggest that such a step would achieve the outcome sought by the guardian – namely the removal of F1 from A’s birth certificate – or indeed effect any change in the birth registration. The decision to re-register, or not, is of course a matter for the Registrar and not for me, but it may well be that a finding to the effect that the current registration may be incorrect will not carry very much weight.

The simple reality in this case is that the court has not been able to make a finding as to paternity. The mandatory provision in s58(1) does not apply because the truth of the proposition to be declared has not been proved to the satisfaction of the court. All applications made or deemed under s55A are therefore refused.

That outcome will leave A’s birth certificate unchanged. F1 will continue to be named as the father. On one view that would be to perpetuate an untruth, or at least a partial truth. Welfare is not of course a relevant consideration on this application, but any unease at this outcome may be alleviated by the fact that:

I am required to decide first where the children should live. F1 seeks an order that they move to live with him in Y County. I can understand why such an order is sought: B is his biological son; M has shown herself to be resistant to promoting that relationship; and M has not put A’s best interests first in her handling of the paternity issue.

However, the evidence is that the children are settled and thriving in M’s care and a move would cause them enormous disruption and potentially distress. They would lose not only the primary home with which they are familiar but their school and church, both important planks of their community. The concerns that F1 has identified, which, as I have made clear, I consider to be valid, can be addressed in a more proportionate way, namely by a robust child arrangements order which secures B’s relationship with his father, and enables A also to maintain and develop her relationship with F1.

I have considered whether B should spend time with his father, separately from A. His need for that relationship to be restored is probably more urgent. However all the evidence suggests that the children are close and want to be treated as a sibling pair as far as possible.

I am working on the basis that M and F2 will continue to have a good relationship, and therefore that (subject to issues of parental responsibility, which I consider below) a child arrangements order is unnecessary. Currently A is spending time with F2 on a flexible pattern: the usual arrangement is that she is with him on alternate weekends, sometimes but not always accompanied by B.

Balancing all of these factors, the order which I consider to be in both children’s best interests is an order that requires M to make the children available to spend time with F1 on a four-week cycle as follows:

This arrangement is intended to ensure that:

There has been a long break in contact, and aside from the few days in 2024 when they stayed in Y County, the children have not stayed overnight regularly with F1 for some time. There may therefore need to be a short transitional period when these arrangements are put in place. I hope the parties can agree a stepped arrangement which builds up to the above pattern by (at the latest) the end of the summer term. If they cannot I will determine this issue on the papers.

There is no need for contact to be supported or supervised. Once these arrangements are embedded most handovers will take place at the school, and those that do not can be managed more than adequately with the support of S, who has offered to continue in that role.

I have not been able to determine the children’s holiday time with F1. There is no reason why they should not spend extended periods with him in the holidays, as they have done before, but I have not been addressed specifically on this issue. Again, if there is no agreement I will decide the issue on the basis of written submissions.

The children will live with M. An order to that effect will enable her to take them out of the jurisdiction for holidays without requiring the consent of any other person. I will grant the same permission to both F1 and F2. All three adults will be required to provide the others with the usual information about travel and accommodation arrangements in advance of any holiday.

M has parental responsibility for both children.

F2 currently does not have parental responsibility for either child. If he is A’s father the court can confer it under CA 1989, s4(1). If he is not the father, the court may make a child arrangements order in his favour which will have the effect under s12(2A) of conferring parental responsibility for as long as the order is in force. In submissions Ms Whelan suggested that one difficulty might be that in this case the court cannot find that F2 is either “father” or “not father”, which would have the unfortunate consequence that both routes are barred.

F1 has parental responsibility for B. Whether or not he has it for A depends on the answer to the question whether a man who is equally likely to be and not to be the father, and who is named on the birth certificate, has parental responsibility for the child. That is a question which adds an additional layer of complexity to the issue which the Court of Appeal is due to determine later this year, namely whether a man who is on the birth certificate but subsequently established not to be the father retains parental responsibility.

Rather than embark on a legal analysis which may in any event be unravelled later by the Court of Appeal, I intend to deal with the issues of parental responsibility for both putative fathers by defining, through a framework of specific issue and prohibited steps orders, the scope of each party’s decision-making powers and responsibilities. In doing so A’s welfare is my paramount consideration, and my aim is to ensure that each of the putative fathers is provided with information about significant issues to do with A’s upbringing, without requiring a degree of consultation which is both unrealistic and unjustified in the circumstances of this case.

The orders that I will make will require M to:

Otherwise M will be free to make decisions for A without informing or consulting either F2 or F1.

On a day to day basis, when either child is in their care, each of F2 and F1 will be empowered to do what is reasonable for the purposes of safeguarding or promoting their welfare, pursuant to s3(5).

There was some discussion during submissions as to how such order(s) might be drafted. It was suggested that an alternative form of words could be formulated which would encompass both possibilities (ie that either father has, or does not, parental responsibility). On reflection it seems to me that such an approach is unduly complex. If the order is drafted as set out above that should be sufficient to give all parties, and any relevant third parties, a clear way forward in dealing with all situations that are reasonably likely to arise.

The order will be served on the children’s school and GP.

I have made clear my concern at the prospect of A finding out as an adolescent or adult that there is uncertainty as to her paternity. I accept the guardian’s view, and that of all the parties, that both children are still too young for this issue to be discussed with them. However it would, in my view, be very much in the children’s interests for the parties to take steps now to start formulating a narrative to be given to the children in due course, so that they are not taken by surprise if the issue comes to light sooner than they expected.

One option might be to adjourn the proceedings and direct the parties to obtain expert advice on this issue. That was flagged in closing submissions as a possible way forward, but was not a route which any of the parties found attractive. I agree that the proceedings need to end. There is a much better prospect of the parties finding common ground once they are no longer entangled in litigation which they have all found exhausting and stressful.

In those circumstances, all that the court can realistically do is ask the parties to reflect on what I have said in this judgment, and signpost them to resources which may help them prepare for the difficult task ahead. I would be grateful for the guardian’s assistance with the latter. In the first instance, once the dust has settled, I would suggest mediation as a way of entering into a conversation with each other about their hopes for A’s future, and their thoughts as to how they can each best support her.