A family court judge has concluded that a same-sex parent named on a child’s birth certificate, but who hasn’t taken other steps towards legal parentage, cannot apply for a child arrangement order because she doesn’t have legal parental responsibility.
The judgment on a preliminary issue in Re X (female partner non-acquisition of parental responsibility) was handed down in private by Recorder Sirikanda KC.
The case involved a former couple, both women, and a child, X. One of the women, referred to in court as AR, sought legal rights regarding the child who was born to her partner, BM.
The couple met and began a relationship in 2023 when BM was pregnant with X. When X was born, BM and AR registered X’s birth and AR was named as a parent along with BM.
X’s genetic father was referred to in court as LY. He has played no part in X’s life and his whereabouts were ascertained via the DWP. He was sent notices of hearings, but did not attend nor communicate with the court.
BM later claimed she had been coerced into naming AR on the baby’s birth certificate, and has also made serious allegations of domestic abuse against AR.
In AR’s account, the registrar voluntarily produced a same-sex birth certificate registration form and named her as a parent on the birth without checking for further details.
Sirikanda’s judgment said that AR does not fall within the definition of parent and therefore does not have an entitlement to apply for a section 8 order, a legal decision made under the Children Act 1989 to settle disagreements regarding the care and upbringing of a child.
In his decision, the judge pointed to three separate appeals heard together recently at the Court of Appeal which considered the issue of the acquisition of parental responsibility by “fathers”, each of whom was registered as the father of a child on their birth certificate, when in fact they were not, or could not be proven as, the genetic father of the child.
In Re J (Loss of parental responsibility) the then-president of the Family Division, Judge Sir Andrew McFarlane, described as “entirely correct” the submissions of the intervening secretary of state for justice which stated “the fact that a person who is not the genetic father is named on the birth certificate as ‘father’ does not make them the father of the child in law and that person does not acquire parental responsibility.”
Judge Sirikanda said: “In my judgment, by parity of reasoning with Re J (loss of Parental Responsibility) [2026] EWCA Civ 344, the only way AR, a woman, could acquire parental responsibility for X as a result of registration as his parent on the birth register is if, prior to registration, she was also a parent pursuant to section 43 [Human Fertilisation and Embryology Act] 2008. That is the proper construction of Section 4ZA CA 1989. Section 43 HEFEA 2008 contemplates that the child was born as a result of assisted reproduction within the scheme of the Act. It is common ground X was not born as result of any form of assisted reproduction.”
“Therefore AR does not have parental responsibility for X, and I will make a declaration to this effect.”
He continued: “This is a case where AR contends that she has been a psychological parent to X and she seeks ongoing contact. By contrast BM accuses AR of significant domestic abuse and criminal proceedings have ensued as result of that alleged abuse.
“The law requires AR to make an application for permission to issue a section 8 application which then needs to be determined. I will therefore give directions to this effect.”
The judge also issued a warning regarding the apparent ease of registering AR as a parent of the child.
He said: “If the parties’ accounts of what took place at the registry office are accurate it is of concern that there may be a practice of unmarried same-sex female couples who are not in a civil partnership attending registry offices to register a birth, and the woman who is a non-genetic, non-gestational parent being registered as a ‘parent’ without satisfying the criteria for such registration under the Section 43 of the Human Fertilisation and Embryology Act 2008. This is not in accordance with the law and not in the interests of the registered child, who needs certainty as to whether the persons named on the birth register are their legal parents.”
