Anna McKenna KC, leading Naomi Wiseman, and Joseph Landman, instructed by Charles Mellor and Isabel Wilson of Creighton & Partners, represented the mother in the case of Re P heard as one of three conjoined appeals which addressed the issue of birth certificates over which there was either mistake, misrepresentation or uncertainty.
The conjoined appeals addressed the consequences for parental responsibility following a declaration of non-parentage. The Court held that individuals registered as fathers on birth certificates either through mistake or fraud, thereafter subject to a declaration of non-parentage, had in fact never acquired parental responsibility by virtue of the registration. Those individuals were not ‘father’ to the child against whose birth they had been so registered”
The factual circumstances of the case of Re P were complex. Paternity of the subject child was either one or other of a set of identical twins. Scientific testing has been unable to identify which of identical twin brothers is the biological father to the child. It was found at the court below that there is a 50:50 likelihood of their respective of paternity. One of the twins is registered as father on the birth certificate and the appeal related to a refusal by the court below to make a declaration of non-parentage.
The Court of Appeal confirmed the common law definition of ‘father’ and made clear that as neither twin could prove themselves to be the genetic/biological father, neither is as a matter of law the child’s father. The twin registered on the birth certificate as ‘father’ was not entitled to be so registered. As to the 50:50 finding, the Court further held that it is not possible to conclude that the twin registered on the birth certificate is not the child’s father.
Accepting submissions on behalf of the Registrar General, the Court of Appeal refused to make a declaration of non-parentage under s.55A Family Law Act 1986. As a consequence, the birth certificate will not be re-registered under s.14A of the Births and Deaths Registration Act 1953. The Court of Appeal was sympathetic to the trial judge on this complex issue, however decided that it was ‘wrong’ of the court below in the circumstances not to make express order to remove the parental responsibility from the twin named on the birth certificate, he having possibly acquired it by being so named, given the uncertain factual matrix as to the true paternity of the child.