What happens if a man is listed on a birth certificate as a child’s father, but DNA testing later reveals that he is not the biological father? Should he lose parental responsibility automatically? Or, did he never have parental responsibility to begin with?
And, what happens if DNA testing is unable to identify which of identical twins is the genetic father to a child? Which twin is the legal father? Which twin should be named on the birth certificate and have parental responsibility?
Those were just two of the important questions that arose in the landmark case of Re J, Re M, and Re P (Loss of Responsibility) [2026] EWCA Civ 344, which has recently been handed down by the Court of Appeal.
In broad terms, the case dealt with issues relating to the legal concept of ‘parental responsibility’. Reflecting the wide-ranging impact of this case, the Secretary of State for Justice, Reunite International Child Abduction Centre, the Association of Lawyers for Children and the Registrar General all received permission to intervene.
The core issue arising in each of the cases of Re J, Re M, and Re P was the determination of legal consequences following from an individual having been registered on a child’s birth certificate in the event that it is later established through DNA testing that they are not in fact the child’s biological father.
In Re J, the applicant had understood that he held joint parental responsibility with the mother, given that he had been registered as the child’s ‘father’ on the birth certificate. At the time of the registration, undertaken jointly with the mother, both he and the mother believed him to also be the biological father.
Re M differed in that there was awareness at the point of the joint registration that the man concerned was not the biological father. However, across both cases, the men concerned had played an active, ongoing role as a psychological or social parent to the child. Both had further done so believing that they had joint parental responsibility with the child’s mother, by virtue of having been registered as ‘father’ on the child’s birth certificate.
The case of Re P featured additional complications owing to an extremely unusual factual matrix. The mother in Re P had engaged in sexual intercourse with identical twins within a short timeframe from the estimated date of conception. Either could have been the father. This further meant that DNA testing could not establish with any certainty which twin is the biological father. It was a 50/50 chance as to which twin was the biological father.
The appeals provide legal clarification on the interaction of parentage and parental responsibility, and in particular:
- Even if someone is listed on the birth certificate as a child’s father, this does not guarantee him parental responsibility. An unmarried man who is listed on the birth certificate as a child’s father, but who is not the child’s biological father, will never have held parental responsibility for the child. As such, these men will not have the parental rights or responsibilities for the child that appertain to parental responsibility.
- DNA testing may be required to establish parental responsibility in cases where an unmarried man is registered on the birth certificate as a ‘father’ and where there are doubts as to paternity.
- The court must still consider social/psychological parenting as part of any welfare assessment. The case of Re G [2006] 4 ALL ER 241, which clarifies the importance of social and psychological parenting, remains good law. For these non-biological parents, the appropriate legal route to protect their role in the children’s life is to apply for child arrangements orders under section 8 of the Children Act 1989, a parental responsibility order, or for leave pursuant to section 12 of the Children Act 1989.
- The Court of Appeal also confirmed that the definition of a ‘father’, within the Children Act 1989, is the common law definition and is therefore strictly limited to a child’s biological father.
The case is vital reading for all children practitioners, and not just those engaged in domestic children matters. Practitioners must be live to any issues of paternity in international cases, as the judgment is likely to have a huge impact where ‘rights of custody’ are in play in abduction cases.
Rosa Schofield, The International Family Law Group LLP
Liz Andrews, 1GC
