The High Court has delivered a pivotal judgement concerning the legal parentage and parental responsibility of a child conceived via international fertility treatment, underscoring the complexities that arise when biological ties, social roles, and statutory definitions diverge.
Facts:
The parties began a relationship in 2018 and attempted natural conception without success. In 2020, they started IVF in the UK, creating embryos using the mother's eggs and the applicant's sperm. After three unsuccessful rounds, the mother researched the notion of IVF in Europe using anonymous donor sperm. In September 2021, they agreed to use an anonymous donor from a clinic in Northern Cyprus. Both parties travelled there, and on 29 September 2021, they, along with the donor, signed a "Declaration and Consent Regarding Sperm Donation" form. This form stated that the male partner (applicant) would be the father and accept all legal responsibilities, despite the child not carrying his genetic material. They were not advised to seek UK legal advice.
D was conceived using the mother's egg and anonymous donor sperm in late September 2021 and was born in June 2022. On 19 August 2022, the parties registered D's birth, listing the mother as his mother and the applicant as his father on the birth certificate.
The parties' relationship ended in June 2023. The applicant then applied for a child arrangements order in August 2024. The mother responded in October 2024 with an application to prevent D from being taken out of the jurisdiction and, crucially, on 27 November 2024, applied for a declaration of non-parentage to remove the applicant from D's birth certificate. An Independent Social Worker supported the de facto father’s application, and he duly applied for a Declaration of Parentage in March 2025 pursuant to Section 55A of the Family Law Act 1986.
The mother stated she was emotional when registering the birth and didn't understand that putting the applicant's name on the certificate would give him parental responsibility, and, although she does not seek to remove his parental responsibility, as he has tried to be a father. However, she later raised concerns about the applicant's mental health and sexual boundaries with D, and she opposed D spending Friday nights with the applicant. The applicant maintained he is D's father, regardless of genetic heritage, and that they had made a "clear and mutual decision" that any child born would be his. He denied the mother's allegations of being a sexual predator or mentally unstable.
Decision:
The High Court granted the mother's application for a declaration of non-parentage. Despite not being D's legal parent, the Judge ordered a joint lives-with order for D, meaning D will live primarily with the mother but also with the applicant who was granted parental responsibility for D under the Children Act 1989.
The Judge's reasoning for declaring the applicant not to be D's legal parent hinges on the common law principle of parentage and the inapplicability of statutory modifications. Indeed, the fundamental principle in English common law is that a child's legal parents are the gestational mother and the genetic (biological) father. The applicant is explicitly acknowledged not to be D's genetic father, as anonymous donor sperm was used.
The Human Fertilisation and Embryology Act (HFEA) 2008 provides specific statutory schemes that can displace the common law and attribute legal parenthood to non-biological parents. However, for these provisions to apply, strict conditions must be met. The Judge cited P v Q to emphasise that, while a birth certificate is important practical evidence of parentage, it does not create legal parentage. Legal parentage arises from law (common law or statute), not from the act of registration.
Despite the finding of non-parentage, the Judge then shifted to D's welfare, which is the paramount consideration in proceedings under the Children Act. The Judge found no hesitation in concluding that it was not contrary to D's best interests to determine the application, as D has a strong bond with the applicant that will endure.
Implications:
This case reinforces the principle from RQ v PA and KL v BA that the acquisition of parental responsibility via birth registration under Section 4(1)(a) of the Children Act 1989 applies only to a person who is, in law, the child's biological "father". If a man is not the biological father and does not meet the HFEA 2008 criteria to be deemed a legal father, then, even if named on the birth certificate, he does not automatically acquire parental responsibility (PR).
The judgement makes it unequivocally clear that HFEA 2008 sets out strict and specific conditions for a non-biological father to be recognised as a legal parent. If these conditions are not met (e.g., parties are unmarried, the treatment was abroad, or at an unlicensed clinic), the common law rule of genetic paternity prevails.
This is perhaps the most significant practical implication. This case demonstrates the English Family Court's paramount concern for the child's welfare, overriding any strict legal definitions of parentage. Despite declaring the applicant not to be D's legal parent, the Court still granted him PR and a "joint lives-with" order. It provides reassurance to de facto parents who are not biological or legal but have played a significant role in a child's life, that their continued involvement and ability to share in decision-making can be protected and formalised by the Court.
