Who is a ‘legal parent’? Declarations of Parentage explained

While the concept of a ‘parent’ is understood so simply in society, in law it can be far more complex. Here, Partner and family law specialist Joe Ailion explains what Declarations of Parentage are, the legal process to get one and how disputes are resolved by the courts.

What is a Declaration of Parentage?

A Declaration of Parentage is the ability of the Court in England & Wales to make “a declaration as to whether or not a person named in the application is or was the parent of another person so named” (s55A of the Family Law Act 1986).

‘Parent’ in this context refers to the legal parent — the person who is recognised in England and Wales as the parent of an individual for the purposes of a number of laws including record keeping, nationality, inheritance entitlements, nationality and financial responsibility for children (among others).

There is an important distinction between legal parenthood and other forms of parenthood, such as biological or social parenthood. There are various scenarios in which an individual’s genetic or psychological parents will not be their legal parent, for example when donor gametes have been used or where someone has been adopted or raised by other family members.

There is a further distinction between legal parenthood and parental responsibility for a child (i.e., the legal ability to make decisions in respect of a child’s upbringing and welfare). Not every legal parent will have parental responsibility and not everyone with parental responsibility will be a legal parent.

Who is a legal parent?

In simplest terms, a child’s birth mother (i.e., the individual who carried and delivered the baby) will always be their legal parent when they are born, even if they are not the genetic parent. The birth mother will always be a legal parent unless and until either a parental order or adoption order is made. These are the only two orders that can remove legal parenthood.

A person can have a maximum of two legal parents. Whether there is a second legal parent (and if so, who that is) depends on a number of factors, which include:

1. biological links
2. the marital status of the birth mother
3. the consent of a spouse or civil partner of the birth mother
4. the method of conception (e.g., natural or artificial) and whether a licenced clinic was involved.

Evidently, there are many possible scenarios that can create uncertainty or dispute about whether someone is legally a parent.

A few examples include:

• Natural conception — if a child is conceived naturally through intercourse, the identity of the father may not always be clear. Conception may have been the result of a ‘one night stand’ or affair. There may be an individual who is believed to be the father (and who therefore carries financial responsibilities for the child), but who doubts that they are the legal parent. Likewise, there may be individuals who believe that they are the biological father of children and are concerned that they (and their children) are being deprived of that being recognised in law.
• Sperm donation — perhaps a well-meaning individual had donated sperm to an (unmarried) lesbian couple so that they could have a baby, in a home-based arrangement outside of a clinic. Without a proper understanding of legal parenthood, it may not be appreciated that doing this outside of a registered UK clinic means that the donor retains legal parenthood for the child. This may not have been intended by any of the parties involved.
• DNA test — individuals that purchase DNA tests from companies like 23andMe could discover that their biological parenthood is not as they had thought. This can also have implications for legal parenthood.

In all these scenarios (and many others), an assumed parent may well wish to dispute their legal parenthood.

Must all parentage disputes be resolved through the court?

It may be possible for parties to settle everybody’s understanding on legal parenthood without the need to apply to court. For example, people could decide to undergo private DNA testing, which may settle their minds as to the reality.

However, in cases where this is not possible, there is a legal process to ask the court to make a Declaration of Parentage or Non-Parentage.

What is the legal process for a Declaration of Parentage?

There is no time limit for an application for a Declaration of Parentage. They can be made in respect of children or adults.

An applicant must satisfy the court that they have a sufficient personal interest in the application, except when they are the parent or child of a person whose paternity is in question, or indeed that person themselves.

If the person in question is still a child, the court can refuse the application if it does not consider this to be in the best interests of the child.

The court will consider all relevant evidence to determine who is the legal parent. In some cases, it may require DNA testing to determine the dispute.

The DNA testing process

The court can make an application for a secure chain-of-custody DNA test to determine the biological reality of parenthood.

That process is practically quite straightforward. There are a number of court-recognised testing labs that collect samples from those involved (taking great care to ensure the samples are kept secure and intact), before analysing them and publishing a report.

In cases involving children, CAFCASS may be involved to supervise the sample collection process.

What happens if an adult refuses to consent to DNA testing?

While the court can make a direction for DNA testing without the consent of all the adults involved, it cannot force an adult to undergo testing. However, failure to test will entitle the court to make inferences as to what that means for the likely parenthood. This can be a factor in its decision-making  process when considering whether to make a Declaration of Parentage.

The effect of a Declaration of Parentage

Once a Declaration of Parentage is made, the named individual will have the benefit of knowing that their legal status is accurately recorded. Many feel that this is an important part of their identity. It can also be important for one’s understanding of their medical and genetic history.

A Declaration of Parentage can be provided to the General Register Office so that birth records can be corrected or updated if necessary.

A Declaration of Parentage will mean that the correct individual is subject to the financial obligations that come with legal parenthood, as well as clarity in knowing who a parent is for the purposes of nationality, inheritance and more.

If you need help to secure a Declaration of Parentage or resolve parentage disputes, our family law team is on-hand to provide the sensitive advice you need. Get in touch with me at joe.ailion@brabners.com or another member of our family law team to find out more.