ED v MG

Legal parentage is not determined conclusively by birth registration. In assisted reproduction cases, parentage may depend on common-law principles and statutory schemes governing non-biological parents.

Where an application under section 55A of the Family Law Act 1986 concerns a child, the court may refuse to hear it only where determining it would not be in the child’s best interests. The inquiry is not an ordinary welfare determination. The statutory presumption favours deciding the factual and legal question of parentage, subject to the statutory safeguards and the manifest public-policy exception.

A person who is not the child’s biological or legal father does not acquire parental responsibility merely because he is named on the birth certificate. Nevertheless, the court may make child-arrangements orders conferring parental responsibility where that serves the child’s welfare.

The parties had undergone assisted reproduction abroad using anonymous donor sperm. The respondent gave birth to D, and the applicant was named as D’s father on the birth certificate. The parties later separated.

The respondent applied for a declaration that the applicant was not D’s parent under section 55A of the Family Law Act 1986. The applicant opposed determination of the application on best-interests grounds and relied on the parties’ agreement and his role in D’s life. The court also had to determine parental responsibility and outstanding child-arrangements issues.

The central questions were whether the application should be heard, whether the applicant was D’s legal parent, whether birth registration had conferred parental responsibility, and what arrangements best served D’s welfare.

1. Declaration application. The application was heard and determined. The court was not satisfied that determination would be contrary to D’s best interests. There was little evidence of emotional harm, the relationship between D and the applicant would remain, and D’s interest in knowing the truth about his genetic parentage supported determination.
2. Parentage. Parentage was a mixed question of fact and law. The applicant was neither D’s genetic nor gestational parent. Under the common law he was therefore not D’s parent. Sections 36, 37 and 38 of the Human Fertilisation and Embryology Act 2008 did not apply because the parties were not married or civil partners and the treatment occurred at an unlicensed clinic outside the United Kingdom. The common-law position was not displaced by statute.
3. Public policy and registration. There was no public-policy obstacle, still less a manifest one, to making the declaration. Accuracy of the Register supported the declaration. Registration was evidential and did not itself create legal parentage.
4. Parental responsibility. The applicant had not acquired parental responsibility merely because he was named on D’s birth certificate. Section 4(1)(a) of the Children Act 1989 required the person to be the child’s father. The applicant was neither D’s biological nor legal father.
5. Child arrangements. Applying the welfare checklist, the court made a joint lives-with order. D was to live primarily with the respondent but also with the applicant, with staged overnight contact and holiday arrangements. This structure promoted meaningful involvement by both adults, reduced the risk of marginalisation, and supported shared decision-making. The applicant thereby obtained parental responsibility through the order.