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parental-responsibility-and-paternity-test

Family Court Library

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Case Law - Parental Responsibility and Paternity Test
 
 
 
Parental Responsibility following negative paternity test results 3 cases of interest:
 
  • A Local Authority v SB & Ors  [2022] EWFC 111 (15 July 2022)
  • Re C&A (Children: Acquisition and discharge of parental responsibility by an unmarried father) [2023] EWHC 516 (9 March 2023)
  • A Local Authority v SB & Ors   [2023] EWFC 58 (23 March 2023)
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    Summary of the 3 Cases
     
    A Local Authority v SB & Ors [2022] EWFC 111 (15 July 2022)
     
    Whether the discharge of parental responsibility is an automatic consequence of the declaration of non-parentage or whether it is a separate welfare based decision.
     
    section 4 of the Children Act 1989, and in particular subsection (2A), which provides, "A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders" .
     
    Key Paragraphs from the Judgement
     
    28. To my mind, one of the most important factors is that a declaration of non-paternity is a declaration of biological fact rather than a declaration as to legal status. Self-evidently an order under the Children Act 1989 section 4(2A) is the latter. The two orders being so different in character,  I find it difficult to see how the order being referred to under section 4(2A) could be the declaration of non-paternity .

    29. Secondly, there is the use of the word "only" in section 4 (2A),

    "A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility  only if the court so orders"

    That seems to suggest that an order under subsection (2A) is the only route by which parental responsibility conferred under section 4(1) can be lost. Again, that appears to preclude the possibility of parental responsibility being lost following an order or a declaration made under a completely different piece of legislation .

    30. Thirdly, there is the fact that the whole of section 4 of the Children Act 1989 is subject to the principle that the child's welfare is paramount. That was made clear by Ryder LJ in the case of Re D. It concerned a biological father, but nevertheless the point still stands. He said:

    "When a court is considering an application relating to the cessation of parental responsibility, the court is considering a question with respect to the upbringing of a child with the consequence that by section 1(1)(b) of the Children Act 1989 the child's welfare will be the court's paramount consideration."

    31. Ryder LJ goes on to say that there is no requirement to consider the welfare checklist, although the court may find it a useful analytical framework, not least because welfare has to be considered and reasoned. He also added that the cessation of parental responsibility is an order of the court, "Therefore the court must consider whether making such an order is better for the child than making no order at all".

    32. It is clear, then, that the matters which the court will take into account when considering an application for discharge of parental responsibility are much wider than the predominantly factual matters which it will consider when dealing with an application for a declaration under the 1986 Act (notwithstanding the residual discretion referred to earlier).

     
    Key Principles:
     
    1 . section (2A) is the only means by which the court can consider removing parental responsibility from a father who has gained it under subsection (1);

    2 . that it is a welfare-based decision;

    3. that the fact that the man in question has been found not to be the biological father will feed into that welfare consideration, but that the discharge of parental responsibility is not automatic. The importance of the lack of a biological link is one which will vary from case to case.

     
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    Re C&A (Children: Acquisition and discharge of parental responsibility by an unmarried father) [2023] EWHC 516 (9 March 2023)
     
    Issue: The process of removing of the father’s name from the child’s birth certificate would be triggered and therefore result in his parental responsibility being discharged.

    The Judge departed from the above case of it being a welfare based decision for the following reasons:

    Key Paragraphs:

    13 . In my judgment, the biological link is the foundation that identifies a man as the father of the child under the aforementioned statutory regime. When that foundation is displaced, the status of that man as the 'father' cannot persist.

    In light of this, HHJ Moradifar disagreed section (2A) required a welfare analysis to be undertaken:

    15. Where the very legal presumption for the acquisition of parental responsibility by operation of law under s. 4(1) does not exist, any welfare analysis is superfluous and would serve no purpose at all.

     
    15. I agree with Mr Kirkwood's sagacious submissions that it would be contrary to public policy and the intentions of parliament to conclude that in such circumstances parental responsibly ceases ab initio. Therefore, this raises the argument that a declaration of 'non-parentage' and a subsequent re-registration is all that is required for N to cease to have parental responsibly for C. There is an inherent attraction and neatness to this argument. However, in my judgment, this cannot survive the provision of s.4(2A) of the Act. Its terms are clear by stating that a court order is required. In my judgment it would also be good practice to be clear that parental responsibility has ceased by reference to a particular date’.
     
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    A Local Authority v SB & Ors [2023] EWFC 58 (23 March 2023)
     
    HHJ Case maintained that ‘[an] application relating to the cessation of parental responsibility is a question with respect to the upbringing of a child . Indeed, having regard to Ryder LJ's reasoning, one might even say that an order terminating parental responsibility is the quintessential question with respect to the upbringing of a child. It is an overarching decision which alters the composition of the small group of adults in a child’s life who are charged with all decision making for the child, save for any decision which is directly determined by the court.’ [2]
     
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    Concluding Principles:
    • Acquisition of parental responsibility under s.4(1) is based on the rebuttable presumption that he is the biological father of the child.
    • If that presumption is rebutted, then the foundation for the acquired parental responsibility is displaced.
    • An order should be made when discharging a man’s parental responsibility under s.4(2A) rather than simply relying upon a declaration of non-parentage.

    [F4(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders . (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).]

    It still seems unclear as to what extent it is or should be a welfare based decision.

    Other References

    Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315

     

     

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