C (Parental Responsibility: Death of Unmarried Mother before Birth Registration), Re

This judgment concerns applications by the father for: (i) a declaration of parentage pursuant to section 55A of the Family Law Act 1986; and (ii) an order for parental responsibility pursuant to section 4 of the Children Act 1989 in respect of his son, C, born in June 2026.

The applications arise from exceptionally sad circumstances. Within hours of the birth of his second son, the father lost his fiancée and, at the same time, became the sole carer of a newborn child and their older son.

The applications themselves are legally straightforward and, on the evidence before the court, their outcome was never in doubt. At the conclusion of the hearing I announced that I would make both orders because I was satisfied that they ought to be made without delay. I nevertheless reserved my reasons 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.

Before deciding whether this judgment should be published in anonymised form, I invited submissions from Mr Horner, who appeared on the father's behalf. Mr Horner supported publication. With my permission, the father also addressed the court briefly. He explained that, when he learnt following the mother's death that he would need to apply to the court simply to obtain parental responsibility for his newborn son, he hoped that, if possible, his experience might help prevent other bereaved parents having to face the same difficulties in the future.

The father's sentiments were expressed with dignity and generosity. They did not, of themselves, determine the question of publication. That decision is one for the court. However, they reflected the wider public interest which, in my judgment, arises from the unusual circumstances of this case

The father and the child’s mother (“the mother”) began their relationship in 2017. They lived together from 2019, became engaged in 2022, and in 2023 bought a family home in their joint names. They already had a child together, L, born in March 2024.

C was born in June 2026. Tragically, shortly after his birth, the mother died. C was discharged from hospital into the father’s care on the same day, and has remained in his care ever since.

No issue is raised as to the father’s paternity. His evidence, which I accept, together with the surrounding circumstances, establishes a long-standing and committed relationship, cohabitation, joint ownership of the family home, an older child of the relationship, and complete acceptance by both families that he is C’s father.

Following the mother’s death, the father found that he could not be entered as C’s father in the register of births. Because the parents were not married, and because the mother had died before the birth was registered, none of the ordinary administrative routes by which an unmarried father may be registered as the father was available to him.

A consequence of that position is that the father did not acquire parental responsibility under section 4(1)(a) of the Children Act 1989, which confers parental responsibility on an unmarried father who becomes registered as the child’s father.

The consequence is striking. Although the father has cared for C continuously since birth, no person presently holds parental responsibility for him. The mother held parental responsibility automatically by virtue of section 2(1) of the Children Act 1989, but her parental responsibility ended on her death; and the father, for the reasons I have given, never acquired it.

These proceedings were therefore issued urgently, seeking both a declaration of parentage and an order for parental responsibility.

The court’s jurisdiction derives from section 55A of the Family Law Act 1986. The purpose of a declaration of parentage is not to create parentage, but to declare a legal status that already exists. The burden is on the father to satisfy the court that he is C’s father.

I have considered carefully whether scientific testing is necessary. Section 20 of the Family Law Reform Act 1969 confers a discretion upon the court to direct such testing; it does not impose a mandatory requirement.

On the facts of this case, there is no evidential basis for requiring it. The father’s evidence is detailed and credible; there is no competing evidence; and no issue is raised by any person. The father indicated that he would willingly undergo testing if required, and that willingness enhances rather than undermines the reliability of his evidence. To require testing would add delay and expense without advancing the court’s fact-finding function.

I am satisfied, on the balance of probabilities, that the father is C’s biological father. I therefore make the declaration sought.

The application for an order for parental responsibility is equally compelling. Section 4 of the Children Act 1989 permits the court to confer parental responsibility upon an unmarried father. In determining the application the child’s welfare is my paramount consideration, and I have 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.

Each factor is overwhelmingly satisfied. The father has demonstrated complete commitment to C from the moment of his birth. He became C’s sole carer on the day of his birth, while at the same time dealing with the sudden death of his fiancée. There is no question as to his motivation: he seeks parental responsibility only so that he may discharge the ordinary responsibilities expected of any parent.

Most importantly, C’s welfare plainly requires that there be a person able lawfully to exercise parental responsibility on his behalf. It is contrary both to common sense and to C’s welfare that an infant should have no one holding parental responsibility.

Although section 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, that provision is no substitute for the legal authority that accompanies parental responsibility. Healthcare decisions, dealings with public authorities, and the ordinary incidents of everyday parenting all require certainty.

It is plainly in C’s interests that this legal vacuum should end immediately. I therefore make an order for parental responsibility in the father’s favour.

The legal principles applied in this judgment are neither novel nor controversial. What is unusual is the statutory consequence produced by the tragic combination of three facts:

The result is that a child may be left with no person holding parental responsibility, notwithstanding that he has lived continuously from birth with his undisputed biological father. The court is able to remedy that situation by making an order for parental responsibility, as I have done.

I add one observation about the relationship between the two orders. 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. That is why I have made an order for parental responsibility rather than leaving the position to be resolved through re-registration.

The difficulty exposed by this case is not one of legal principle but of procedure. Had the mother lived, the father could have acquired parental responsibility by the ordinary administrative act of joint registration, without any application to any court. On her death, that route, and every other administrative route by which an unmarried father may be registered, each of which presupposes the mother's participation, became unavailable to him. No administrative mechanism exists to bridge the gap. The surviving father's only means of establishing his parentage and securing parental responsibility is to invoke the jurisdiction of this court. The consequence is that a newly bereaved parent, left as the sole carer of a newborn, must issue and pursue urgent proceedings in order to obtain a status that, but for the timing of the mother's death, the law would have conferred upon him automatically; and until those proceedings are determined, no person holds parental responsibility for the child.

For those reasons:

I make a declaration pursuant to section 55A of the Family Law Act 1986 that the father is the father of C;

I make an order pursuant to section 4 of the Children Act 1989 conferring parental responsibility on the father; and

I make the consequential directions contained in the orders sealed today, including notification to the Registrar General.