Modern relationships take on all forms and unplanned children may be born to couples who are not married or in a committed/exclusive relationship. In those situations, it may be that a biological father is not named on the child’s birth certificate, in which case a Declaration of Parentage may be required, which focuses on proving or disproving parental status.
In this article, Terri Anson-Dean, Senior Associate in our Family Law team based in our Witney office, explains more about applying for a Declaration of Parentage, discussing a matter she was recently instructed on and she clarifies the implications for other families in this situation.
The case involved a biological father (X) who was deliberately not named on the child’s birth certificate by the mother who had named her husband (Y) as the biological father, despite knowing he was not. By doing this, (Y) automatically acquired parental responsibility for the child, meaning that (X) was not recognised, nor did he have any parental responsibility for the child, despite being the biological father.
Naming someone as the child’s father on a birth certificate knowing they are not the father is paternity fraud. A birth certificate is a legal document and is signed on the basis of the information being correct and true. When a person is married to the mother, it is presumed that they are the biological father; however, this can be rebutted when the mother knows at the time of the birth that they are not.
There is no legal definition of a “father” and it includes the child’s biological father or someone who gains parental responsibility so they have a right towards the child and their upbringing.
What is a Declaration of Parentage?
A Declaration of Parentage focuses on proving or disproving parental status. Therefore, if you are the biological father and you are not named on the birth certificate, you can apply for a Declaration of Parentage together with a Declaration of Non-Parentage of the incorrect person named on the birth certificate.
How to apply for a Declaration of Parentage?
In order for a Declaration of Parentage to be made, an application must be made to the Court and once issued the Court will list a hearing which usually takes between four to six weeks. Further hearings may be necessary in order to obtain evidence of parentage, such as DNA tests, before a Declaration of Parentage/Non-Parentage is made. However, once made, the Court must notify the General Registrar within 21 days to amend the birth certificate. The original information remains on the birth certificate with a note to correct the child’s biological father and the date of the correction.
It is important to note that when a Declaration of Parentage/Non-Parentage is made it does not automatically remove the parental responsibility rights acquired by the non-biological father nor does the biological father acquire parental responsibility for the child. A separate application will need to be made to obtain parental responsibility and remove or limit that of the non-biological father.
The Court will make the decision with the child’s welfare being the paramount consideration to help with their decision, using the ‘welfare checklist’. Under section 1 of the Children Act 1989 the welfare checklist includes taking into consideration the child’s wishes, feelings, physical, emotional, and educational needs, and the effect that the change in circumstances will have, all while taking into account the child’s, age, sex, background and relevant characteristics. The checklist also looks if any harm has been suffered or is at risk of being, the capability of the parents or relevant persons to meet the child’s needs, and the range of powers available to the Court in the proceedings. In addition to the welfare checklist, they would also consider:
- The degree of commitment the applicant has shown towards the child;
- The degree of attachment between the applicant and child;
- The motivation of the application for Declaration of Parentage
What is Parental Responsibility?
The Children Act 1989 defines parental responsibility which represents the rights and responsibilities each parent has regarding a child’s life. The mother always has parental responsibility, however a father acquires parental responsibility in a number of ways such as being married to the mother, being named on the birth certificate, entering into a Parental Responsibility Agreement (although these are becoming more and more rare) or by applying for a Parental Responsibility Order.
How to remove parental responsibility?
In the case of Re A (Parental Responsibility) [2023] EWCA Civ 289, the President of the Family Division, Sir Andrew McFarlane delivered a judgement focusing on the acquisition and removal of parental responsibility and the distinction between married and unmarried parents that is made within the Children Act 1989. Parental Responsibility can be ended by adoption and the Court has the power to terminate parental responsibility of unmarried fathers, unmarried second female parents or step parents. However, when parents are married or in a civil partnership, there is no power to revoke parental responsibility of a father or second female parent.
Regardless of whether or not there is a statutory power to terminate parental responsibility, in every case the Court may control and limit a parent’s ability to exercise parental responsibility by making certain legal orders, such as a Prohibited Steps Order or a Specific Issues Order. These can enhance the ability of the other parent to exercise parental responsibility with respect to specific issues such as medical treatment and where the child should attend school. Limiting a person’s status to prevent them from exercising parental responsibility does not remove parental responsibility, but it does mean that there can be some control for one parent where the parental responsibility of the other cannot be terminated.
Contact our Family Law Solicitors
If you are a father who has been left off of your child’s birth certificate, or you are looking for advice relating to a Declaration of Parentage or any aspect of Parental Responsibility, contact Terri Anson-Dean from our Witney office by calling 01993 670944 or emailing terri.anson-dean@parkerbullen.com. We offer a free initial discussion to consider your individual situation. To book an appointment or to speak to one of our Family Lawyers, contact us today by using the Contact Form, emailing info@parkerbullen.com or calling your local office.
- Family Law Solicitors Andover: 01264 400500
- Family Law Solicitors Romsey: 01794 328688
- Family Law Solicitors Romsey (Incorporating Kirklands): 01794 513466
- Family Law Solicitors Salisbury: 01722 412000
- Family Law Solicitors Totton (Incorporating Kirklands): 023 8066 3313
- Family Law Solicitors Witney: 01993 670944
ENDS
This is for information purposes only and is not substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.