Re J, M and P (Parental Responsibility) [2026] EWCA Civ 344

Three conjoined appeals concerning men registered as 'father' on birth certificates who were not biological fathers. The Court of Appeal held 'father' in the Children Act 1989 means the genetic father only, so parental responsibility never arises from registration if the registrant is not the biological father.

Facts

The Court of Appeal heard three conjoined appeals concerning the attribution of parental responsibility to men registered as ‘father’ in the birth register entries of children who were not, in fact, their biological fathers.

Re J

AJ and MJ were in a relationship when MJ became pregnant. J was born in 2020 and AJ, believing himself to be the biological father, was registered as father. Two years later, MJ told AJ he might not be the father; DNA testing confirmed another man was J’s genetic father. AJ sought to retain parental responsibility. Debra Powell KC (sitting as a Deputy High Court Judge) held that AJ, never being J’s legal father, had never acquired parental responsibility.

Re M

MM and AM purchased donor sperm online from an anonymous donor outside a licensed clinic. M was born in 2019 and AM was registered as father. DNA testing later confirmed AM was not M’s biological father, and the judge found AM had dishonestly held himself out as such. Within care proceedings, HHJ Tucker declared AM was not M’s father and held any parental responsibility was lost.

Re P

MP had sexual intercourse with identical twin brothers TP1 and TP2 within four days of each other around conception. DNA testing could not distinguish which twin was P’s father; each had a 50% probability. TP1 was registered as father. HHJ Reardon held paternity could not be established to the balance of probabilities and declined to make any declaration under FLA 1986, s 55A.

Issues

The court identified four key issues:

1. Whether the definition of ‘father’ in the Children Act 1989 is limited to the biological/genetic father or extends to psychological/social fathers.
2. Whether parental responsibility attributed by registration attaches to a registered ‘father’ who is not the biological father.
3. If so, whether such parental responsibility terminates automatically on a declaration of non-paternity under FLA 1986, s 55A, or requires a separate CA 1989 order.
4. If a separate order is required, whether the decision is governed by the child’s welfare as paramount consideration.

A further issue in Re P concerned the appropriate declarations and treatment of parental responsibility where paternity could not be established between identical twins.

Arguments

Appellants

During the hearing, appellants conceded that ‘father’ at common law is limited to the genetic father. Ms Briggs KC (for AJ) argued that Parliament, by permitting registration to confer parental responsibility without DNA testing, must have tolerated error, such that registration triggered parental responsibility persisting until discharged by court order, supported by Ghaidan v Godin-Mendoza and Article 8 ECHR. Mr Momtaz KC (for AM) argued that registration was sufficient evidence of paternity for s 4(1) purposes until a contrary declaration. Ms Markham KC (for TP2) and Mr Bagchi KC (for P’s guardian) sought declarations designed to remove TP1 from the birth register and clarify parental responsibility.

Respondents and Intervenors

The Secretary of State, represented by Joanne Clement KC, submitted that ‘father’ in CA 1989 ss 2 and 4 reflects the common law meaning limited to the genetic father; registration of a non-father therefore never creates parental responsibility. The Association of Lawyers for Children emphasised the child’s right to know the truth of their identity and warned against expanding the statutory category. Reunite addressed the ‘abduction gap’ for international removal cases.

Judgment

Sir Andrew McFarlane P (with King LJ and Stuart-Smith LJ agreeing) held:

Definition of ‘father’

The court reaffirmed the settled common law principle, citing Bracewell J in Re B (Parentage) [1996] 2 FLR 15 and Peter Jackson LJ in P v Q and F [2024] EWCA Civ 878, that a child’s legal parents are the gestational mother and the genetic father, subject only to specific statutory modifications (e.g. HFEA 2008, adoption). Nothing in CA 1989 indicates Parliament intended a different meaning.

Registration and parental responsibility

The court relied on P v Q and F that registration is evidence but not conclusive of parentage and does not create a legal presumption. For parental responsibility to arise under s 4(1)(a), two conditions must coexist: the person must be the genetic father AND be registered as father. Where a non-father is registered, parental responsibility never arises in the first place – it is not a question of being ‘void ab initio’ but of statutory interpretation whereby the status was never acquired.

Consequences

Since no parental responsibility arises, the question whether it terminates automatically on a s 55A declaration, or requires a s 4(2A) order with welfare as paramount consideration, does not arise in the first two cases. The decisions of Debra Powell KC and HHJ Tucker were upheld.

Re P

As paternity could not be established on the balance of probabilities, no declaration under FLA 1986, s 58(1) could be made: failure to prove a fact does not equate to proof of its opposite. The Registrar General could not be expected to re-register the birth without a clear statement. However, the continuing ambiguity over TP1’s parental responsibility was contrary to P’s welfare. The court ordered, under s 4(2A), that any parental responsibility TP1 may have acquired by registration should cease, with welfare questions concerning future grants of parental responsibility to be addressed in further submissions.

Ancillary observations

The court observed that a s 4(1)(c) order in favour of a non-genetic father would be made without jurisdiction and must be discharged when this becomes apparent. Non-genetic psychological parents may still be granted parental responsibility through s 8 child arrangements orders and s 12. In potential abduction cases, putative fathers should seek s 8 and s 12 orders promptly, and courts making s 55A declarations should consider interim protective orders.

Implications

The decision definitively confirms that ‘father’ under the Children Act 1989 is limited to the genetic father, ending uncertainty generated by divergent first-instance decisions including RQ v PA, Re G, Re SB, Re C, ED v MG and Re X. Registration on a birth certificate, while practically important, confers parental responsibility only where the registrant is also the genetic father.

The ruling means that men mistakenly registered as fathers – whether through genuine error or dishonesty – never acquire parental responsibility, so no court order under s 4(2A) is required upon a declaration of non-paternity. This provides clarity but creates a potential ‘abduction gap’ under the 1980 Hague Convention where a left-behind registered ‘father’ turns out not to have rights of custody because he never had parental responsibility. The court indicated such situations may need to be addressed under non-Convention abduction remedies or by timely protective orders under ss 8 and 12.

Non-biological psychological or social parents are not left without remedy: parental responsibility can be conferred through child arrangements orders under s 8 together with s 12. The decision is of direct importance to family practitioners, local authorities, guardians, registrars, and children’s services, and reinforces the child’s right to a truthful understanding of their biological identity. In Re P, the court acknowledged the unresolved factual limit where paternity as between identical twins cannot be determined, leaving P’s birth register entry intact while removing legal ambiguity over parental responsibility.

Verdict: All three appeals were dismissed. In Re J and Re M, the first-instance decisions that the non-biological registered ‘fathers’ had never acquired parental responsibility were upheld. In Re P, although the appeal formally failed, the Court made an order under CA 1989, s 4(2A) discharging any parental responsibility TP1 may have acquired through registration, with welfare issues concerning future grants of parental responsibility to be determined following further submissions.

Source: Re J, M and P (Parental Responsibility) [2026] EWCA Civ 344