Re A & B (Declaration of Non-Parentage) [2025] EWFC 41

[2025] EWFC 41Case No CM21P91855
IN THE FAMILY COURT
IN THE MATTER OF SECTION 55A OF THE FAMILY LAW ACT 1986
AND IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 1990
AND IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008
AND IN THE MATTER OF A and B.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2025
Before
THE HONOURABLE MR JUSTICE COBB
Between
JApplicantLRespondents
Re A & B (Declaration of Non-Parentage)
The Applicant and First Respondent in person for in personJamie Niven-Phillips (solicitor of Cafcass Legal) for Second/Third Respondents by their GuardianHearing Hearing dates: 27 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 4 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE COBBThis judgment was delivered in private.The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.The Honourable Mr Justice COBB :

Introduction

[1]The application before the court is brought under section 55A Family Law Act 1986 (‘FLA 1986’).[2]The applicant is Mr J (hereafter ‘Mr J’); he seeks a declaration of non-parentage in respect of twin children, who I shall refer to as A (a boy) and B (a girl). The children are now 16 years of age. The children are represented in this application by Mrs Lillian Odze of the Cafcass High Court team. The children’s mother is the First Respondent to this application (‘the mother’).[3]For the purposes of determining this application, I have received and read witness statements from Mr J and the mother. Mrs Odze has prepared a helpful report and this is supported by a detailed skeleton argument from Mr Niven-Phillips, on behalf of the children. Mr Niven-Phillips has characteristically gone beyond the call of duty on this application, in drawing my attention to a range of relevant arguments for and against the order sought, given that Mr J and the mother are both without legal advice or representation.[4]The Attorney General was invited to consider intervening in the proceedings in case he wished to argue that the declaration sought by Mr J should be refused on public policy grounds. The Attorney General indicated no wish to intervene.[5]At an earlier case management hearing, I made an order requesting the Child Maintenance Service (‘CMS’) to provide answers to questions about the impact of a declaration of non-parentage on its decisions relating to Mr J’s ongoing and previous payments of child maintenance. No response was received, but the lack of information from the CMS provided no reason not to proceed with the application.

Background

[6]There were aspects of the background history to this application which are disputed between the parties. Fortunately, it was agreed at the hearing that it would be unnecessary for me to resolve those disputes for the purposes of determining the application. What follows therefore is a bare outline of the relevant facts.[7]Mr J and the mother met in Cyprus in 2006; both parties were living and working there. Mr J had previously been married, and had children from his first marriage.[8]In November 2007, the parties underwent fertility (IVF) treatment at a clinic in Cyprus. This was their second round of such treatment. Conception was achieved using the sperm of an unknown donor with the eggs of the mother. The mother fell pregnant.[9]In April 2008, the parties married. Three months later, in the summer of that year, A and B were born. Mr J’s name appears on their birth certificates as the children’s father.[10]The marriage was short-lived. By October 2009, the parties had separated; divorce proceedings followed in 2011. Ancillary to the divorce, the parties engaged in financial remedy proceedings in the Family Court in England. A clean break order made in April 2012 expressly recorded that Mr J accepted financial responsibility for the children; he was ordered to pay £120 per month in respect of each of them. In documents filed in support of his present application, Mr J suggests that he agreed to this because he was poorly advised. Shortly thereafter, the CMS became involved (there is a dispute about who contacted the agency, which I do not need to resolve) and the maintenance was paid thereafter under its ‘collect and pay’ service. The rate of payment of child support has, over the years, fluctuated.[11]Mr J has had no contact with the children of any kind since the parties separated more than fifteen years ago – no visits, no cards, no letters, no photographs. But throughout the whole period, it is agreed that he has maintained them financially, without proven default. The mother acknowledges that the payments have materially contributed to the children’s well-being, funding not just the necessities, but also school trips, clubs and holidays over the last sixteen years. Mr J states that he has now retired from working on grounds of ill-health, and now cannot continue to pay.[12]In June 2021 Mr J sought to challenge his maintenance obligations by an appeal to the First Tier Tribunal of the Social Entitlement Chamber on the basis that he is not the children’s father. The order made on his appeal records the Tribunal’s view that Mr J was A and B’s father “unless he obtains a declaration of non-parentage from the Family Court”. The order continued:
“it is unlikely that without a declaration of non- parentage, the CMS will be able to change any child maintenance liability now or in the future.”
[13]Thus, in July 2021, Mr J made this application under section 55A FLA 1986. There was a regrettable, and largely unexplained, delay in progressing the case through the Family Court, and then in the purported (albeit erroneous Circuit Judges cannot transfer cases from the Family Court to the High Court: see sections 31I, 38 and 39of the Matrimonial and Family Proceedings Act 1984; rule 29.17(3) and (4) of the Family Procedure Rules 2010; President’s Guidance on allocation and transfer (Feb 2018) ([26]). The fact that no High Court Judge was involved in the purported transfer of the case to the Royal Courts of Justice may explain how the application disappeared into the system. ) transfer of the application by a circuit judge in the Family Court to the High Court. A further short delay was occasioned while efforts were made, through the means of third party disclosure orders, to locate the mother and children. That said, as soon as the mother was located and served, she promptly engaged with the process and filed her evidence as directed.[14]In April 2024, the children were joined to the application; Mrs Odze was appointed as their Children’s Guardian. On 3 October 2024 I directed that Mrs Odze should prepare a report specifically directed to the jurisdictional gateway issue contained in section 55A(5) FLA 1986 (see §17 below). That report was filed in December 2024. Both the mother and Mr J have been able to comment on that report in writing, and at the hearing.[15]A and B are obviously bright and engaging young people. They have completed their GCSEs with good results; they are now in secondary education studying for A levels. They are both aware that they were conceived through donor fertility treatment. B has some health concerns. Both children are secure in their family unit with their mother and her fiancé (whom the mother will marry in 2025) and their younger half-sister.[16]The father has since remarried, and has adopted his step-daughter.

The law

[17]The relevant parts of section 55A FLA 1986 read as follows: “(1) Subject to the following provisions of this section, any person may apply to the High Court, or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. (5) Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child. (7) Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration”. (Emphasis by underlining added).[18]Section 58 of the FLA 1986 provides: “(1) Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy”.[19]These sections have unsurprisingly been considered by the court on a number of occasions. I was taken to Re S (a child) (declaration of parentage) [2012] EWCA Civ 1160 in which Black LJ (as she then was) observed (at [23]) that in considering an application of this kind, section 58 FLA 1986 makes clear that a judge “is deciding whether a fact is established, in this case whether this man is the father of this child”; it is not “taking a discretionary welfare decision or making a value judgment”. Of the specific statutory provisions with which I am concerned, she said ([28]):
“… the thrust of sections 55A and 58 is that a declaration will be made unless there is a reason not to do so. Section 55A(5) does not simply invite the court to carry out an assessment of whether it is in the child's best interests to have a determination of the application. It empowers the court to refuse to hear the application if it considers that determining it “would not be in the child's best interests”
. By the time section 58 is reached, the impetus towards the declaration has become even stronger. It will be made unless to do so would not only be contrary to public policy but manifestly contrary to public policy”.[20]At [31] of Re S, Black LJ described a theoretical but “obvious” and “radical” case in which the court would be likely to refuse to hear the application as not being in the best interests of the child, namely if it were to concern a teenager who is threatening suicide in the event the application is permitted to proceed, and where the evidence reveals that “should the proceedings continue, the child is at serious risk of emotional harm at the very least”. Black LJ suggested two further examples at [32], namely that:
“… the child conceived in a rape or the child who is settled with adopters would potentially give rise to a power under section 55A(5) to refuse to hear the application”
. Those examples provide a useful and authoritative benchmark.[21]In P v Q and Others (Declaration Of Parentage) [2024] EWFC 85 (B) Gwynneth Knowles J, having referenced Re S above, went on to comment on statutory provision in section 55A(5) FLA 1986 (the ‘Declaration Gateway’ as she called it) as follows: “[27] When considering best interests pursuant to section 55A(5), the court is not required to consider whether hearing the application is in the best interests of the named child but only to consider whether hearing the application would not be in the child’s best interests.Neither the paramountcy principle nor the welfare checklist in the Children Act 1989 are engaged in this exercise”. (Emphasis by underlining added).[22]Mr Niven-Phillips invites me to consider the Article 8 ECHR rights of the parties involved in this application. In this respect, he cited MacDonald J in MS v RS (Paternity) [2020] 2 FLR 689, especially at [95]: “… any decision by the court not to accede to the father's request to legally determine whether he is the father of the children constitutes an interference with his right to respect for family life unless it is in accordance with the law, pursues an aim or aims that are legitimate and can be regarded as necessary in a democratic society. In addition, it would be unfair on the father, and arguably a further breach of his Art 8 rights, to remain indefinitely as the children's legal father by virtue of a presumption if that is not the biological reality. Beyond these factors, there is a wider public interest in the children's status being, eventually, formally settled and recorded in properly maintained records, not least to address potential future questions with respect to, for example, consanguinity”. (Emphasis by underlining added).[23]Finally in this regard, it was pointed out that section 55A(5) FLA 1986 only applies in respect of applications made in respect of children. If I were to decline to determine Mr J’s application at this stage, a further application made after the children are 18 (child maintenance remaining payable after the age of 18) would not require passage through the jurisdiction gateway.[24]If I decide that the application is to proceed through the jurisdictional gateway, the legal parentage of A and B will be determined by reference to the Human Fertilisation and Embryology Act 1990 (‘HFEA 1990’), which was the relevant statute in force at the time of their conception by IVF. This provides at section 28 that:
“(1) Subject to subsections (5A) to (5I) below, this section applies in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination. (2)…[relevant to married parties at the time of the conception… therefore not relevant here] (3) If no man is treated, by virtue of subsection (2) above, as the father of the child but— (a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and (b) the creation of the embryo carried by her was not brought about with the sperm of that man, then, subject to subsection (5) below, that man shall be treated as the father of the child.” (Emphasis by underlining added).
[25]In U v W (Attorney General Intervening) [1998] Fam 29; [1997] 2 FLR 282, Wilson J (as he then was) made clear that the ‘licence’ referred to in section 28(3) is a domestic article and “will not be granted for treatment overseas” (see [1998] Fam 29 at p.38A-B). He confirmed this view later in his judgment at p.41G, referring again to couples seeking treatment “under licence in the United Kingdom rather than in another member state”. The clarity offered by Wilson J in U v W in interpreting section 28(3) in this way was put on a statutory footing by the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’), which repealed section 28(3). Section 36 of the HFEA 2008 is clear in providing that ‘licenced’ clinics must be in the United Kingdom:
“… in the course of treatment services provided in the United Kingdom by a person to whom a licence applies…”
.

Report of the Children’s Guardian

[26]For the purposes of preparing her report, Mrs Odze saw the children on one occasion and has reported their views.[27]A told Mrs Odze that he felt that Mr J “should take some responsibility because he was our legal father”. He thought that the court should determine that “he is still a legal father. He should not be able to change that. If you were a legal parent in the first place, you should remain a legal father”. He told Mrs Odze that he did not think about the application, unless his mother mentions it, adding that if the court were to declare that Mr J was not his legal father “I would feel that he is not helping my Mum at all”.[28]B had stronger views. She told Mrs Odze that “if he does not want visitation that’s fine but he signed all these papers, why would he suddenly change his mind. He should continue with the money because it’s helpful”. In relation to the fact that Mr J had adopted his step-daughter within his third marriage, she observed:
“why would you adopt a child if you did not want us. Made me wonder why he wanted her and not us”
. When B was asked how she would feel towards Mr J if the court was to declare that he was not their legal father, she replied, “disgusted really, disappointed”.[29]Mrs Odze commented that neither A nor B have a positive image of Mr J based on what their mother has told them about him. Moreover, although they were aware that Mr J had been providing monthly payments to their mother for their upkeep, “… they were detached about this. They lacked reflectiveness when I noted that neither of them expressed any gratitude towards [Mr J] for this commitment. … as their legal father, it was his duty to do so and indeed to continue to do so for merely another two years until their majority”.[30]On the central question of whether proceeding to determine Mr J’s application would not be in the children’s interests, Mrs Odze helpfully advised as follows:
“… the impact this will have on [A] and [B] is likely to be, in my professional judgment, minimal. It will make no difference to their psychological wellbeing as they are secure in their family with their mother, her fiancé, and their younger sister. Neither [Mr J] nor the children are seeking a relationship with each other and have never had one. On the other hand, it might have an emotional effect on [A] and [B] as a way of determining once and for all that [Mr J] is not their legal father either.”
[31]Mrs Odze was of the view that it was not “emotionally beneficial to either of [the children] to hold on to the idea of Mr J being their legal father simply as a source of monthly financial contributions. She advised me that A and B are “resilient children” and that “whatever decision the court makes, it is likely that the children will be able to take it in their stride and move on with their lives”.[32]Mr Niven-Phillips told me that in a recent conversation with B, she had told him that the financial impact which may flow from this application should not be dismissed lightly, because that is “the only impact that [Mr J] has ever had”. Although she accepted that she would be able to take the decision “in her stride”, she added “… but I don't think we should have to”. A was of the view that he would probably be able to take the decision “in his stride and move on”.

Arguments

[33]Mr J contends that as he is not the biological father of A and B, his legal status should reflect this. He refers to the lack of relationship with A and B, and observes that his only link with them over the years has been a financial one through his payment of maintenance. Importantly he told me that he had “written off” the money which he had paid to the mother for the children over the last fifteen years; he has no wish to recover it. He simply wishes the liability to end at this point.[34]The mother opposes the application asserting that Mr J had been fully involved in the assisted reproduction process from the onset back in 2007, and they had embarked on this course on the basis that he would become the father to A and B. She was concerned about the negative impact on B, in particular, of any declaration that Mr J is not in law her parent, adding that she could not understand “how declaring that [the children] have no legal father in the world is ever in the children's best interests? especially when [B] clearly feels very rejected”.[35]That said, the mother was also able to point to a possible benefit of the declaration being made, namely that the birth certificates can then be corrected, and this would at the relevant time obviate the need for her to consult with Mr J again formally in order, for example, to obtain replacement passports for the children.[36]Mr Niven-Phillips repeated the likely financial detriment to the children as a result of the declaration, if it is made; if I accede to Mr J’s application his liability to contribute to their upbringing will be extinguished. That detriment was described by Mrs Odze, in the overall scheme of their lives, as ‘minimal’ (see §30 above). That said, he acknowledged that there are limited benefits to A and B of the court determining the application; it would confirm to them as a matter of law what is known to both of them as a matter of fact – namely that Mr J is not their father.[37]Mr Niven-Phillips invited me to consider the Article 8 ECHR rights of the children and of the parents in resolving this application. He also invited me to consider, notwithstanding the lack of interest by the Attorney General, whether there were any public policy reasons why I should not make the order.

Decision

[38]Having weighed the arguments outlined above, I am satisfied that I should not refuse to determine Mr J’s application (section 55A(5) FLA 1986). As I have made clear, I could only do so if I were to consider that the determination of the application would “not be in the best interests of” A and/or B. In this case, I have approached the jurisdictional gateway issue by considering four key issues: i) The children’s ascertainable views about the application; ii) Whether there is evidence that the mere fact of considering the application would be likely to be harmful to the children; iii) Whether the application, if granted, would be likely to have such deleterious consequences for the children that I should not even proceed to determine it; iv) How determination of the application fits with the Article 8 ECHR rights of the individual members of the family.[39](i) The children’s views: A and B have expressed slightly different views about the application, but neither of them appear to feel particularly strongly about it. I read Mrs Odze’s report as indicating that A was more or less indifferent to whether the application proceeds; B perhaps more strongly expressed her disapproval. Both children appeared to adopt a moralistic approach; in A’s view, “if you were a legal parent in the first place, you should remain a legal father”; B observed that “he signed all these papers, why would he suddenly change his mind?”.[40](ii) The fact of the application: There is no suggestion in the evidence that by merely considering Mr J’s application the children would be harmed. This case has none of the features of the type of case discussed by Black LJ in Re S (i.e., threatened suicide of the subject child, child the product of rape, child placed for adoption: see §20 above). B’s articulated sense of rejection by Mr J is, it seems to me, more firmly rooted in Mr J’s lack of personal engagement with her over many years, than in his wish to achieve correlation of his actual and legal status. I am persuaded by Mrs Odze’s view that both children are ‘resilient’, that the application will have “minimal” impact on them, and that their “psychological wellbeing” will not be adversely affected by my determining this application given the emotional security which they both enjoy in their current family unit.[41](iii) Application if granted, deleterious consequences: So I have looked at whether the application, if granted, would be likely to have such deleterious consequences for the children that I should not even proceed to determine it.[42]In this respect, I recognise that there would indeed be negative financial implications for the children if this application were ultimately granted. Although Mr J has no legal liability financially to maintain them as a non-parent, the fact is that he has maintained them throughout their childhoods thus far, and his maintenance obligations would fall away. I accept that this will be likely to have some detrimental impact on the children.[43]But that is only one factor. A declaration that Mr J is not in law the father of A and B would reflect clearly and definitively the legal position which the children have known and understood as a matter of fact for many years. I repeat what I said in Re Ms L; Re Ms M (Declaration of Parentage) [2022] EWFC 38 (citing Sir James Munby P in In the matter of HFEA 2008 (Cases A,B,C,D,E,F,G and H Declaration of Parentage) [2015] EWHC 2602 (Fam)) that there can be no more important question – emotionally, psychologically, socially and legally – than ‘who is my parent?’. This declaration would lay to rest any misapprehension that Mr J is the children’s father; the current situation, in which he is legally recognised as their father, is a fiction.[44]Moreover, in general terms, clarification as to A and B’s legal parentage should promote their true identity under Arts 7 and 8 of the United Nations Convention on the Rights of the Child 1989 (the UNCRC); this will, in my judgment, be to their benefit throughout childhood and adulthood. Specifically, the mother will no longer be required to obtain formal consents from Mr J in relation to formal processes such as passport renewal. As MacDonald J said in M v S at [40]: “The child’s long-term interests may also be better served not just by his knowing the truth about parentage but also by the fact that the adults involved will be able to plan their future lives in light of the true situation (see Re E (A Minor) (Child Support: Blood Tests) [1994] 2 FLR 548)”.[45]Therefore I am satisfied that if this application were to be granted it would not have such deleterious consequences for the children that I should not even determine it.[46](iv) Human Rights: Linked to the argument based on ‘identity’ which I have discussed at §44 above, I am satisfied that formal recognition of the child's true legal parentage is a fundamental aspect of the child’s identity within Article 8 of the ECHR; on these facts, this point cuts both ways – the children seek not to have their family life (as they know it) interfered with, but their private and family life must surely represent their true identity. Had I been of the view that it is not in the interests of the children to determine this application, this would have directly cut across the father’s Article 8 rights (see Macdonald J above in MS v RS cited at §22 above). That would of course have been a permissible outcome if I had found it to be necessary and proportionate to achieve the aim of protecting the children’s best interests. However, this is not the case here; by determining the application, I am satisfied that I am able in large measure to respect the Article 8 rights of each of the family, albeit in different ways.[47]I turn then to the application on its merits.[48]The route to the declaration sought by Mr J is clearly marked by statute, and frankly leads in only one direction. Given that(i) Mr J and the mother were not married at the time of A and B’s conception;(ii) that the conception took place otherwise than in a clinic licensed in the UK; and(iii) that the conception was achieved using sperm which was not that of Mr J, section 28(3) does not treat Mr J as A and B’s father. The fact that Mr J was erroneously registered as the children’s father on their birth certificates does not itself confer legal parentage on him. That is the simple and definitive conclusion to be drawn on these facts and I shall make the declaration accordingly.[49]For completeness, I can confirm that there is no public policy reason for not granting this application.[50]By my order, I shall direct a court officer to send a copy of the order which is supported by this judgment to the Registrar General for Births and Deaths within 21 days of the order so that he may consider the re-registration of the birth of A and B under section 14A of the Births and Deaths Registration Act 1953 (Re-registration after declaration of parentage). The Registrar General for Births and Deaths will amend the birth certificates of A and B to remove the name of Mr J as the children’s father.[51]I have written a letter for A and B to explain this decision. I hope that the letter may assist the children in understanding that their views have been heard and taken into account.[52]That is my judgment.

Cited in 3 later judgments