X (A Child) (Husband of Child’s Mother: Declaration of No Parental Responsibility), Re

By this application, I am asked to determine the meaning of the word "father" in the context of section 2 of the Children Act 1989. Does the word mean biological father and only that or does the word’s meaning include the husband of a mother who conceives a child by another man?

The child with whom I am concerned, to whom I shall refer as X, is now aged 6. The three parties to this application are X's biological father, F, the mother, M and the mother's former husband, H. M and H have a child together who is now aged 15. F, the applicant has been represented by Mr Landman. M and H have both acted in person. The court has also been assisted by Mr Niven-Phillips of Cafcass Legal who prepared a helpful skeleton argument, having been appointed as advocate to the court.

F's application is for a declaration that H does not have parental responsibility for X. Mr Landman submits, and I accept, that the High Court has the power to grant such a declaration. Mr Niven-Phillips, as advocate to the court, also accepts this proposition.

M and H were previously married. They remained married at the time that M conceived the child with F and at the time of X's birth. H was named as X's father on her birth certificate.

Some time after X's birth, M disclosed the truth about X's parentage to H. This was confirmed by a DNA test conducted in 2020. In 2021, H was removed from X's birth certificate but F's name could not be added to the certificate. M and H did not enter into a parental responsibility agreement.

In 2023, M and H divorced. They remain on amicable terms and share the care of their fifteen-year-old child. H, from what he has set out in a short statement, has a relatively limited involvement in X's life.

On 25 May 2025, F obtained a declaration of parentage confirming that he is X's legal father. F now seeks a declaration that H does not have parental responsibility for X. H, who has appeared before me remotely, agrees with this proposition and does not seek to assert parental responsibility over X.

M opposes the grant of the declaration. She has helpfully prepared a skeleton argument which I have read and considered. She very courteously told me today that her understanding, based upon advice that she has received, has been that H does indeed have parental responsibility.

As Mr Landman points out, the issue is one which either has or may have practical significance for X. For example, it has a bearing upon who the respondents are in the proceedings currently taking place in relation to X in the family court at Oxford. If H held parental responsibility, he would have various rights in relation to X including, for example, the right to veto a relocation overseas and the right to be involved in making important decisions about matters such as education and medical treatment. Holding parental responsibility can also create obligations. For example, as pointed out by Mr Landman, a person with parental responsibility may commit a criminal offence pursuant to section 1 of the Children and Young Persons Act 1933 if he neglects a child.

In support of his contention that H does not have parental responsibility for X, Mr Landman has produced a very detailed and helpful skeleton argument. In this short, ex tempore judgment I am not going to be able to do justice to all of the points that he makes. As I have said, H supports F's position and has emphasised the limited involvement he has in X's life. He makes clear that he has no intention either now or in the future to exercise parental responsibility in relation to X. He does not wish to be involved in the dispute between M and F over the arrangements for X and would like to be discharged as a respondent to the ongoing litigation between them.

M's primary argument is that as she was married to H when X was born, as a matter of law H was presumed to be X's father. She says that, as a result of that presumption, he acquired parental responsibility from the time of her birth. On M's case, the parental responsibility which H acquired subsists notwithstanding the fact that the presumption of legitimacy has now been displaced by proof that F and not H is X's father and by the declaration of parentage that has been obtained.

M argues that H's construction of the word "father" as being restricted to biological fathers could result in all married fathers having to affirm their paternity with concrete proof in order to establish that they held parental responsibility. In X's case, she asserts that denying H parental responsibility could disrupt X's family life and create instability for her.

Mr Niven-Phillips, as advocate to the court, adopts a neutral position although, in circumstances where M acts in person, he has focussed upon points which it would be open to her to take.

Neither Mr Niven-Phillips nor Mr Landman have been able to identify any binding authority in which this particular issue has been determined. My attention has, however, been drawn to cases in which similar points have arisen in different contexts.

Having considered the competing arguments, I find myself in complete agreement with Mr Landman as to the construction for which he contends.

I begin with section 2(1) of the Children Act 1989 which provides as follows:

So far, so good. The word "father", however, is not defined in the Children Act 1989. In the absence of such a definition, I consider that the word should carry its ordinary meaning, namely biological father. Such a construction, in my view, is consistent with the court's interpretative duty set out in section 1(1) of the Family Law Reform Act 1987. This section provides that:

Although the Children Act does not define the word "father", Schedule 1 of the 1989 Act does partially define the term "parent" for the purposes of that schedule. Paragraph 16(2) of Schedule 1 provides that:

As is well-known, the expression "child of the family" can include children who are not the biological child of one or other parent.

In my judgement, the inclusion of these provisions in Schedule 1 of the Children Act demonstrates that in relation to certain provisions under the Act, Parliament expressly legislated so as to include non-biological parents within their scope. The absence of an equivalent provision in relation to section 2 of the Act, in my view, lends powerful support to the proposition that Parliament must have intended that "father" in that context should be confined to its ordinary meaning.

The fact that section 2(1A) of the Act addresses the acquisition of parental responsibility by a person who holds the status of a parent under sections 42 and 43 of the Human Fertilisation and Embryology Act 2008 further supports the proposition for which Mr Landman contends.

In my judgement, the presumption of legitimacy upon which the mother relies is a rule of evidence. Its effect is that absent evidence to the contrary a man is presumed to be the father of a child born during his marriage to the child's mother. That presumption can, however, easily be displaced by proof to the contrary, for example in the form of DNA evidence.

In this case, H was presumed to be X's father when she was born and would have been presumed to hold parental responsibility for her. That presumption has now been displaced. He is not her biological father. In my view, there is no reason to continue to attribute parental responsibility to him any more than there would be in the case of an unmarried person incorrectly named as the father of a child on a birth certificate.

The construction for which M contends would have the potential to create unfairness to husbands such as H who happen to be married to a person who, without their knowledge, conceived a child with another man. The notion that a person in H's position should, after the truth has been established, retain parental responsibility indefinitely for the child makes no sense, in my judgement.

I also consider that M's construction is contrary to the interests of the child. Biological parentage is an essential part of X's identity. It is part of her life story. She has an older sibling who has a different father from her and it will be apparent to her that the two of them are being brought up differently. In my view, it is contrary to her interests that a person who is not her father and who has no interest in being a parent to her, as H has made clear, should be held to have parental responsibility for her and thus have the ability to make important decisions about her life.

Although no authority has been cited directly on point, Mr Landman has been able to refer to passages in various cases which support the arguments he makes. The cases in question include:

There will be cases in which husbands in H's position have long-established relationships with children to whom they turn out not to be biologically related. Such husbands may well wish to retain parental responsibility for the child notwithstanding the revelation of the biological truth. The Children Act provides a remedy by enabling them as a step-parent to make a freestanding application for parental responsibility.

As I have said, having considered all the arguments, I am entirely satisfied that "father" under section 2 of the 1989 Act means biological father. In this case, I am also satisfied that H does not, in the absence of an order, hold parental responsibility for X and that it is appropriate to grant a declaration to that effect.

I have reached that conclusion without the need to consider arguments advanced by Mr Landman under the Human Rights Act 1998. I record, however, that the cases to which he has referred provide further support for the arguments he advances. McDonald J noted in MS v RS (Paternity) [2020] EWFC 30 [2021] Fam 1 at paragraph 49:

Similarly, the European Court of Human Rights in Kroon and Others v The Netherlands 27 October 1994 Serie A Number 285/C held that:

I therefore grant the declaration sought. That is my judgment.