G (Declaration of Parentage: Removal of Person Identified as Mother from Birth Certificate) (No 1)

In an application for a declaration of parentage, the court must determine parentage on the balance of probabilities and must be satisfied that the evidence is sufficiently accurate and reliable for the declaration, which is a solemn and binding act. Where the child is a party, the court may refuse to hear or determine the application if doing so would not be in the child’s best interests. A finding that one person gave birth to the child and another has acted as the child’s psychological mother does not automatically determine the child’s future living arrangements or require the psychological mother’s removal from the child’s life. Welfare consequences may justify deferring the maternity declaration while further evidence and assessment are obtained.

The applicant claimed to be the child’s genetic father following an informal surrogacy arrangement involving a donor egg and a gestational mother. The child had been registered with another woman as her mother, although that woman was not the person who gave birth. The registered mother and the gestational mother did not participate substantially in the proceedings, and the child’s whereabouts were unknown.

The applicant sought declarations under section 55A of the Family Law Act 1986, together with consequential alteration of the birth registration. The central issues were whether the evidence established the applicant’s paternity and the gestational mother’s maternity, and whether the court should immediately determine both declarations having regard to the child’s welfare.

1. The court was satisfied that the respondents had received, or had been given a sufficient opportunity to receive, the documents initiating the proceedings. It could therefore proceed to determine the application despite their non-participation.

2. Under section 55A of the Family Law Act 1986, the court had jurisdiction. The applicant and child had been habitually resident in England and Wales for the required period. Section 55A(5) permitted the court to refuse to hear or determine the application where determination would not be in the child’s best interests.

3. The court applied the approach described in Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] EWHC 851 (Fam), [2016] Fam 391, and Elliott v Radcliffe [2013] EWHC 806 (Fam). Parentage was to be established on the balance of probabilities, but the court had to be satisfied about the accuracy and reliability of the evidence because a declaration of parentage is solemn and binding. The significance of the issue, including its impact on the child’s Convention rights, was also recognised in Re HFEA 2008 (Cases A, B, C, D, E, F, G and H: Declaration of Parentage) [2015] EWHC 2602 (Fam), [2017] 1 FLR 366.

4. Although DNA testing had not occurred, the contemporaneous clinic, medical and birth records, together with the evidence, established on a clear balance of probabilities that the applicant’s sperm had contributed to the embryo and that the second respondent had carried and given birth to the child. The applicant was therefore declared to be the child’s father. The birth registration would be amended and he would acquire parental responsibility under section 4 of the Children Act.

5. The court found that the registered mother was not the birth mother, but had been the child’s psychological mother and primary carer since birth. The factual finding did not automatically require her removal from the child’s life or determine where the child should live. Given the unknown whereabouts of the child, the possible consequences of immediate enforcement action, and the need for further welfare evidence, the court declined at that stage to determine the application concerning maternity and listed a further hearing.

The judgment records earlier procedural hearings before MacDonald J, Knowles J and Newton J concerning wardship, service, removal and evidence. It is a first-instance decision, and no appellate history is stated in the judgment.