Discharge of Parental Responsibility following a Declaration of Non-Parentage

Parental Responsibility usually lasts until the child is 18 years old. It gives someone the right to make key decisions about the child’s care and upbringing, such as where a child goes to school, or consenting to certain medical treatments. All mothers automatically have parental responsibility, as do fathers who are married to the mother at the time of the birth, or who are registered on the birth certificate.

Occasionally, there can be unexpected discoveries about maternity and paternity, where it is revealed that the wrong parent has been put on the birth certificate. For many reasons, whether personal or financial, the parties will no longer want the non-biological parent to be on the birth certificate, or to continue to have Parental Responsibility for the child. However, even where parentage is not disputed, and parties are in agreement on the issues, removing Parental Responsibility can be a difficult process.

It is possible to remove a non-biological parent’s name from a birth certificate. If the parties are in agreement, they can apply to the General Register Office to change who the recorded parents are, if they have proof that one person recorded is not the biological parent (for example, by showing a DNA test result).  If the parties do not agree, an application needs to be made to the court for a Declaration of Non-Parentage. This declaration can then be shown to the General Register Office to prove that the person is not the biological parent of the child, and the non-biological parent can be removed from the certificate.

However, it is an important point that although being on the birth certificate at the time of a child’s birth grants a person Parental Responsibility, being removed from the birth certificate does not automatically discharge it. This is because of Section 4(2A) of the Children Act 1989, which states:

'A person who has acquired Parental Responsibility under subsection (1) shall cease to have that responsibility only if the court so orders'.

The recent case of A Local Authority v SB & Ors [2022] EWFC 111 (15 July 2022) dealt with the issue of whether a Declaration of Non-Parentage automatically discharges Parental Responsibility. An application had been made under Section 55A of the Family Law Act 1986 for a Declaration of Non-Parentage, and a discharge of Parental Responsibility was also requested. Her Honour Judge Case had to consider ‘whether discharge of Parental Responsibility is an automatic consequence of the Declaration of Non-Parentage or whether it is a separate welfare-based decision’.

She concluded the latter, because of three key issues. The first was, as she stated: ‘one of the most important factors is that a declaration of non-paternity is a declaration of biological fact rather than a declaration as to legal status.’

Secondly, she commented on the importance of the use of the word ‘only’ in section 4 (2A), and how this confirms that the court does not have discretion regarding how such an order is made – namely, it cannot be an automatic consequence of an order made under a separate act.

Thirdly, and finally, she stated that the whole of section 4 of the Children Act 1989 is subject to the principle that the child's welfare is paramount. Even if a parent is removed from a birth certificate or a Declaration of Non-Parentage is made, this is simply a declaration of fact, and the legal status of whether retaining Parental Responsibility would be in the child’s best interests needs to be considered.

It is therefore important to make a separate application under Section 4 (2A) of the Children Act 1989 if you intend on removing a person’s Parental Responsibility. Simply removing their name from the birth certificate or obtaining a Declaration of Non-Parentage will not achieve this outcome for the reasons outlined above.

If you require any further advice or assistance in relation to anything above, please call our Family Law team today on 0113 227 9285.