Re C&A
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 09 March 2023 |
| Neutral Citation | [2023] EWHC 516 (Fam) |
| Docket Number | Case No: RG21C01154 |
| Court | Family Division |
In the matter of;
[2023] EWHC 516 (Fam)
HHJ Moradifar
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: RG21C01154
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Edward Kirkwood (instructed by the Joint Legal Team) for the applicant local authority
Miss Amanda Meusz (instructed by Sweetman Burke & Sinker) on behalf for the 1 st Respondent mother
Miss Corrin Carey of Careys Law for the 2 nd Respondent father
Mr David Merrigan (instructed by Simpson Millar Solicitors) for the 3 rd Respondent father
Miss Jacqui Gilliatt (instructed by THP Solicitors) for the 4 th and 5 th Respondent children through their guardian Miss Natalie Irwin
Approved judgment
Introduction
The local authority applies for public law orders for two children. They are C and A who are respectively twelve and six years old. The children share the same mother but have different fathers. The matter has thus far been allocated to the District Bench and comes before me to hear the mother's application for a declaration of ‘non parentage’ and consequential directions that lead to the discharge of the parental responsibility that C's ‘father’ (‘N’) acquired by being named on C's birth certificate. During the private law proceedings some time ago and in a more recent paternity test it has been established that N is not C's biological father. In the course of submissions, the parties' positions have crystalised further and may be summarised as follows:
a. The mother argues that in light of the undisputed paternity test, N cannot properly hold parental responsibility for C. A declaration by the court as sought would rebut the presumption of paternity which by operation of law has granted N parental responsibility. There will then follow a re-registration process that would remove N's names form C's birth certificate and discharge his parental responsibility. This position is supported by the local authority and C's guardian. They each invite me to address this issue now and not wait until the conclusion of the proceedings.
b. N accepts that he is not C's biological father. He argues that the mother's application should be adjourned and considered at the conclusion of the proceedings. Otherwise, he states that by reasons of the cases that are considered below, the court must undertake a welfare analysis thus suggesting that parental responsibility is not automatically lost on the declaration as sought by the mother. Given his established involvement with C, such an analysis should be undertaken at a final hearing.
c. Although represented at this hearing, understandably, A's father does not advance a position.
The law
I am grateful to the advocates for their written submissions that they have prepared under some time pressure as supplemented by their additional submissions thereafter. Notwithstanding the resources that have been deployed to research the applicable law, only three cases have been identified that may assist in addressing the issues in this case which on any view are not novel in our modern society. I will set out the applicable law by refence to two broad areas, first the statutory framework and second the aforementioned cases.
S. 2 of the Children Act (1989) (‘the Act’) provides that:
“ 2 Parental responsibility for children.
(1) 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.
(1A) Where a child—
(a) has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008; or
(b) has a parent by virtue of section 43 of that Act and is a person to whom section 1(3) of the Family Law Reform Act 1987 applies,
the child's mother and the other parent shall each have parental responsibility for the child.
(2) Where a child's father and mother were not married to, or civil partners of, each other at the time of his birth—
(a) the mother shall have parental responsibility for the child;
(b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
(2A) Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies—
(a) the mother shall have parental responsibility for the child;
(b) the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
(3) References in this Act to a child whose father and mother were, or (as the case may be) were not, married to, or civil partners of, each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning).
…”
S.3 of the Act sets out the provisions concerning the meaning of parental responsibility before setting out the means of acquisition of it under S.4 of the Act which provides that:
“4 Acquisition of parental responsibility by father .
(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) 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
(1A) The enactments referred to in subsection (1)(a) are—
(a) paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;
(b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c) sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.
(1B) The Secretary of State may by order amend subsection (1A) so as to add further enactments to the list in that subsection.
…
(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.
(3) The court may make an order under subsection (2A) on the application—
(a) of any person who has parental responsibility for the child; or
(b) with the leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).
(4) The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
The remainder of S.4 addresses the acquisition of parental responsibility by a ‘second female parent’ and by a step parent. I have not detailed these provisions as they fall outside the remit of this judgment.
S.10 of the Births and Deaths Registration Act (1953) as referred to in the above provisions, provides that:
“10 Registration of father .. or of second female parent where parents not married or civil partners
(1) Notwithstanding anything in the foregoing provisions of this Act and subject to section 10ZA of this Act, in the case of a child whose father and mother were not married to or civil partners of, each other at the time of his birth, no person shall as father of the child be required to give information concerning the birth of the child, and the registrar shall not enter in the register the name of any person as father of the child except—
(a) at the joint request of the mother and the person stating himself to be the father of the child (in which case that person shall sign the register together with the mother); or
(b) at the request of the mother on production of—
(i) a declaration in the prescribed form made by the mother stating that that person is the father of the child; and
(ii) a statutory declaration made by that person stating himself to be the father of the child; or
(c) at the request of that person on production of—
(i) a declaration in the prescribed form by that person stating himself to be the father of the child; and
(ii) a statutory declaration made by the mother stating that that person is the father of the child; or
(d) at the request of the mother or that person on production of—
(i) a copy of any agreement made between them under section 4(1)(b) of the Children Act 1989 in relation to the child; and
(ii) a declaration in the prescribed form by the person making the request stating that the agreement was made in compliance with section 4 of that Act and has not been brought to an end by an order of a court; or
(e) at the request of the mother or that person on production of—
(i) a certified copy of an order under section 4 of the Children Act 1989 giving that person parental responsibility for the child; and
(ii) a declaration in the prescribed form by the person making the request stating that the order has not been brought to an end by an order of a court; or
(f) at the request of the mother or that person on production of—
(i) a certified copy of an order under paragraph 1 of Schedule 1 to the Children Act 1989 which requires that person to make any financial provision for the child and which is not an order falling within paragraph 4(3) of that Schedule; and
(ii) a declaration in the prescribed form by the person making the request stating that the order has not been discharged by an order of a court; or
(g) at the request of the mother or that person on production of— (i) a certified copy of any of the orders which are mentioned...
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