In the great majority of cases, this presented no problem, but occasionally there was a mismatch between the biological and legal father of a child. Paternity testing technology has made such unwelcome discoveries more frequent – and as you might expect, they can cause tremendous upset and not infrequently, divorce. The French were so concerned by the potential for disruption to peaceful family life that they banned paternity testing altogether in 1994. It remains illegal to this day.

But in some jurisdictions, even negative paternity test results may not be enough to persuade family courts to overturn the legal status of the father. It is the latter that counts as far as the family courts in many countries are concerned: the person actually fulfilling the role of Dad to the children. Genes are a very secondary consideration.

Fathers in English law

English family law is no exception to this tendency: if a man is married to the mother at the time of a child’s birth, he automatically receives the status of father. This applies even if his wife is acting as a surrogate mother for another couple. In almost all such cases, he will have no genetic relationship to the child, but still be legally classed as the child’s father and listed on the child’s birth certificate.

In surrogacy, the commissioning parents must apply in the family courts for a ‘parental order’ transferring the legal status of parenthood to them – but even after this process has been completed, they will still not be listed on the birth certificate.

A human rights issue?

These seeming anomalies have caused controversy amongst surrogate parents. In June 2022, a British same sex couple took this issue all the way to the European Court of Human Rights. Their daughter had been born via a surrogacy arrangement made with another couple, with one partner the girl’s biological father. But the surrogate’s husband was, as usual, listed as the girl’s father on the birth certificate, despite having no genetic relationship to her.

The same sex couple argued that this stipulation was a breach of Article 8 of the European Convention on Human Rights, which defines a right to “private and family life”. But the Court was unconvinced, describing the argument as “manifestly unfounded” because the legalities of registration had not prevented the six-year-old from enjoying a day-to-day relationship with her biological father.

Unmarried fathers

Unmarried fathers are also affected by this legal default to marriage. They are not automatically listed on the birth certificate of children born outside marriage, and can only be included with the consent of the mother. Registering the birth of a child has both symbolic and legal significance. Being named on a birth certificate establishes legal fatherhood and often confers parental responsibility for unmarried fathers, depending on the date of registration.

Typically, cohabiting couples reach an agreement between themselves to declare paternity, and then jointly they sign the birth register. But this is optional, and may not happen. In some circumstances, the mother may not wish to name the father – if, for example, the parents’ relationship broke down acrimoniously – and she is perfectly within her rights to do so.

It is possible to add the father to a birth certificate at a later date, if the mother applies to the General Register Office for the birth to be re-registered. However, she will need to submit evidence that a particular individual is the father and make a formal declaration to that effect.

In cases of disputed paternity or fraudulent registration, either party may apply to have the birth certificate amended. The court may order DNA testing to determine biological parentage. Importantly, legal fatherhood may still stand even where DNA disproves biological links, particularly in cases of intentional parenthood (such as IVF or surrogacy – see above)

Fathers can apply in court for a ‘declaration of parentage’ if the mother will not agree to him being registered. This involves taking a paternity test and this normally automatically triggers re-registration. However, such fathers do not acquire parental responsibility.

Parental Responsibility and its implications

Under section 3 of the Children Act 1989, parental responsibility (PR) is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” PR gives a parent the legal authority to make decisions concerning the child’s welfare, education, medical treatment, and religion.

Acquiring parental responsibility:

A father does not automatically have parental responsibility unless certain criteria are met:

• Married fathers automatically gain PR, regardless of whether the child was born before or after the marriage.
• Unmarried fathers can acquire PR if:
  • They are named on the birth certificate (after 1 December 2003 in England and Wales; different dates apply in Scotland and Northern Ireland).
  • They enter into a Parental Responsibility Agreement with the mother.
  • They obtain a Parental Responsibility Order from the family court.
  • They are granted a Child Arrangements Order (residence/live-with order), which typically includes PR.

Without PR, a father may have limited influence in important decisions, such as schooling or medical interventions, although they can still apply to the courts to gain PR or other forms of contact.

Fathers in paternity disputes

Legal disputes regarding paternity arise in a variety of contexts—child support claims, inheritance disputes, and parental contact applications. If paternity is questioned, the court can order a declaration of parentage under section 55A of the Family Law Act 1986.

While genetic testing is a powerful tool, the court will always act in the best interests of the child, which may occasionally override the strict genetic truth. For instance, in cases where a child has formed an attachment to a man they believe to be their father, the court may hesitate to disturb this bond.

Fathers and child contact arrangements

A common misconception is that legal fatherhood automatically entitles a man to contact with the child. In fact, contact is not a right of the parent, but a right of the child to maintain a relationship with both parents, provided it serves their best interests.

If parents cannot agree on arrangements, the father may apply to the Family Court for a Child Arrangements Order(CAO) under the Children Act 1989. The court will consider:

• The child’s welfare (the paramount consideration)
• The child’s wishes and feelings, based on age and understanding
• The capacity of each parent to meet the child’s needs

It is possible for a father to have PR but be denied contact, especially where issues of domestic violence, neglect, or emotional harm are substantiated.

Legal fatherhood in the context of assisted reproduction

With advances in fertility treatments, the definition of fatherhood has expanded beyond biological relationships. The Human Fertilisation and Embryology Act 2008 (HFEA) governs assisted reproduction and determines who is regarded as the legal parent of a child born through artificial insemination or IVF.

Key points:

• If a man is married or in a civil partnership with the child’s mother and consents to the treatment, he will be considered the legal father—even if he is not the sperm donor.
• If the parties are unmarried, the man must sign a parenthood agreement before treatment to be recognised as the legal father.

The HFEA deliberately severs the legal connection between the sperm donor and the resulting child, to avoid future legal conflicts and protect intended parents.

Adoption and stepfather status

Fathers may lose or gain legal status through adoption. A biological father can lose parental rights if the child is legally adopted, unless the court determines this to be against the child’s welfare.

Conversely, stepfathers may acquire PR by:

• Obtaining a court order
• Entering into a PR agreement with the mother (and any other person with PR)
• Adopting the child, which permanently confers full legal status

The adoption process involves rigorous assessment and social worker reports, reflecting its significance in permanently altering parental rights and responsibilities.

Fathers’ rights advocacy and changing attitudes

The last two decades have seen increased public and political attention to fathers’ rights, particularly regarding contact and equality in family proceedings. Campaign groups have challenged what they perceive as an institutional bias against fathers, especially in cases where mothers unilaterally restrict access.

However, the courts consistently emphasise the child’s welfare over adult rights. While the presumption of “continued involvement” of both parents was introduced by the Children and Families Act 2014, this is not a guarantee of equal contact or shared residence.

Emerging legal developments

Several trends are reshaping the legal landscape of fatherhood:

• Digital birth registration systems may facilitate quicker recognition of fathers, particularly those who are unmarried.
• Shared parenting reforms are being debated to reduce parental conflict and encourage cooperative parenting.
• Post-separation parenting programmes are increasingly mandated by courts to promote the child’s best interest.

The legal status of fatherhood in the UK is a dynamic and multifaceted area of law. From acquiring parental responsibility to asserting contact rights, or navigating complex surrogacy and adoption scenarios, the position of fathers continues to develop. Legal fatherhood is not solely about biology, but about commitment, responsibility, and the ability to serve a child’s best interests.

For fathers navigating these challenges, legal advice and proactive engagement in the child’s life are essential. Meanwhile, family law must continue to strike a balance between legal clarity and the diverse realities of modern parenthood.

The post The legal status of fatherhood appeared first on Major Family Law.

In most cases, new partners eventually meet the children of the earlier relationship and spend time with them. It’s very easy to fall into a semi-parental role in such situations. You’re an adult, they’re children and their other parent is not around.

A balancing act

But it’s a delicate situation. The child may resent you for being too firm with them, feeling that you are attempting to take the place of the absent parent. But equally, if their other parent has passed away, they may welcome a new parental figure in their lives as they grow up.

If the other parent is still on the scene, they will almost certainly expect you to keep a distance, and will be unhappy if you do not. This is especially likely if the break-up was acrimonious and they resent the loss of day-to-day contact with their children.

But every family is different. An absent parent may not be especially involved in the lives of his children, especially if he or she has started a second family or has a demanding job that keeps them busy or away for long periods. In those cases, you as a step parent may have a valuable role to play in the lives of the children – not a substitute for the other absent parent, but as a caregiver. Children living in difficult family situations often welcome an adult who provides stability and reassurance.

Perhaps the best approach to life as a step parent is to follow your intuition – to ‘play it by ear’. This is not a situation in which strict rules or rigid formulae are appropriate. Be sensitive to family dynamics and to the individuals involved, and adopt your approach as the situation inevitably changes over time.

The law and step parents

Step parents have no default status in family law. They do not automatically hold parental responsibility – the legal status of parent – even if married to the one of the actual parents. This means that, even if they look after the children on a daily basis, step parents have no say in the child’s education, for example, and no status in medical matters either.

Medical emergencies are one situation in which parental status is clearly in the best interests of the children – especially if the absent parent lives a significant distance away and is not easily contacted. Fortunately, there is a potential solution, as long as the step parent is married to one of the biological parents, or in a civil partnership with them. Step parent responsibility agreements are legal documents that confer parental responsibility on the step parent, in addition to the biological parents or parent.

As you might expect, such agreements require the consent of both biological parents (provided both are still living). All parties – including the step parent – sign the document in the presence of a court officer and this is then despatched for formal ratification by the family court.

If the step parent is not married to a parent, or in a civil partnership with one, an application can be made in court for the conference of parental responsibility. This is also necessary if one parent does not agree to the extension of parental responsibility. Judges will make a decision based on what they believe to be in the best interests of the child.

An expert family lawyer will be able to guide you through the options most appropriate to you and your circumstances.

The post How involved should a step parent be? appeared first on Major Family Law.

Some go on to have children and most times this is a cause of celebration but, unfortunately, children can also be a source of considerable complication if things go wrong. The spouse or partner living abroad has sacrificed proximity to their family, friends and home for a new life with their significant other abroad, and if the relationship or marriage breaks down, they may lose any of the motivation they once had for remaining in the UK. Divorced and separated expats often feel isolated, homesick and desperate to return to their old lives.

Changing circumstances can also tempt British divorcees towards new lives abroad. They may want to improve their circumstances, have a job offer in another country or a new overseas partner.

If the former couple had no children, the partner keen to go will be entirely free to dig out their passport and fly away once the divorce has been settled or the separation completed. But if there are children, they will have to – as a matter of law – reach an arrangement with the other parent because their children have a right to a continuing relationship with them, unless there is a very good reason for it not to continue. Taking a child abroad without consent is abduction.

As family law specialists, we frequently receive enquiries from anxious and unhappy parents who want to go home or on to a third country, and from others worried they may lose contact with their child after hearing the other parent talk about leaving the country. Divorce and separation are already stressful enough. So just what is the law?

Habitual residence and the child’s rights

An essential concept in international relocation cases is habitual residence. This legal term refers to the country where a child has a settled presence, both physically and emotionally. The UK courts use habitual residence to determine jurisdictional issues in international child disputes. A child’s habitual residence is not solely determined by the length of stay but by factors like the degree of integration into the new environment, including education, language, and family ties.

If a parent relocates a child abroad without court approval, and the child becomes established in another country, this may complicate legal proceedings, as the child’s habitual residence may shift over time. This can significantly affect which country’s courts have authority over future matters concerning the child.

Parental responsibility and legal nuances

Parental responsibility is defined under Section 3(1) of the Children Act 1989. Mothers automatically have parental responsibility, and fathers usually acquire it if they are married to the mother at the time of birth or are registered on the child’s birth certificate (post-2003 in England and Wales).

In practice, even when only one parent has day-to-day care of the child, both parents with parental responsibility have a legal right to make significant decisions in the child’s life, including relocation abroad. It is important to understand that this shared right does not mean the parents must always agree on everything, but that they must agree on fundamental decisions—relocation being one of them.

I am separated/ divorced and want to relocate abroad with my child – how do I do so?

If you wish to move abroad with your child or children, there are two routes open to you:

1. Obtain written consent from the other parent, along with anyone else who holds parental responsibility for the child. This could be an adoptive parent, a legal guardian or other carer, and is distinct from biological parenthood.
2. Apply for permission from the family courts if the other parent does not or will not agree to the relocation. You can take this route if a child arrangements order is in place. This is a legal order setting out which parent a child should live with and how much time they should spend the other.

Unless a family court has specifically stated otherwise, the parent with which a child normally lives does not require legal permission to take them abroad for a holiday or visit of less than a month, but it is still sensible and in the best interests of your child to inform the other parent and negotiate with them if necessary.

How will the family courts approach a potential move abroad?

The fundamental legal consideration in any case involving children is their best interests. The Children Act 1989 states clearly that:

“When a court determines any question with respect to…the upbringing of a child…the child’s welfare shall be the court’s paramount consideration.”

This means that a child’s welfare will always take priority over the wishes of the parents in a family court ruling. This might mean a judge:

• Ordering the parent with whom the child lives to remain in the UK – at least for the time being – so the other parent can continue to see them.
• Allowing the relocation if, for example, a judge decides that ordering the parent with care of the child to stay in the UK would have a serious, negative effect on their wellbeing or health, something that obviously would not be in the child’s best interests. In such the courts will still endeavour to ensure regular time with the other parent.

Specific Issue Orders: A route for resolving disputes

When disputes arise over moving abroad, the appropriate legal tool is a Specific Issue Order under Section 8 of the Children Act 1989. This allows the court to determine whether a specific action—such as international relocation—should be permitted.

The court will look at:

• Whether the proposed move aligns with the child’s best interests
• The viability and realism of the relocation plan
• The implications of refusal on the parent proposing the move

The court can also combine a Specific Issue Order with a Child Arrangements Order, which clarifies where the child will live and with whom they will spend time. These tools help ensure legal clarity and support enforcement if conflicts arise post-relocation.

The Role of CAFCASS

In many relocation cases, the court will involve CAFCASS (Children and Family Court Advisory and Support Service). CAFCASS officers are specialists who advise the family courts in England on what is safe for children and what arrangements are in their best interests.

CAFCASS may be asked to:

• Interview both parents and the child
• Review the child’s educational, emotional, and developmental needs
• Provide a report with recommendations

These reports carry significant weight in court and help judges make decisions aligned with the child’s welfare.

Psychological impact on the child

One aspect sometimes underplayed in legal arguments is the psychological impact on the child. While the court primarily considers welfare from a legal standpoint, psychological well-being should also be considered.

Factors include:

• The trauma of separation from the non-relocating parent
• Adjustment to a new culture or language
• Potential isolation from extended family and social networks

Psychological evaluations or expert testimony can sometimes be introduced in contentious cases where concerns about emotional well-being are raised.

Post-relocation contact arrangements

Courts aim to ensure that, where possible, the non-relocating parent maintains a meaningful relationship with the child. This can include:

• Extended holiday visits, particularly during summer and winter breaks
• Virtual contact via video calls, messaging, and emails

In some cases, the relocating parent may be asked to cover the costs of international travel to ensure the child’s continued relationship with the other parent. This may include:

• Airfare for the child
• Accommodation for the visiting parent, if contact takes place abroad
• Communication tools and schedules for consistent contact

Risk of relocation denial

There are several scenarios where the UK courts may refuse relocation, even if the primary carer is the one proposing the move. These include:

• If the move appears to be motivated by a desire to reduce or eliminate the other parent’s contact
• If the proposed living situation in the new country lacks stability
• If the parent’s plans appear unrealistic or inadequately thought out
• If the child expresses strong opposition (particularly in cases involving older children)

Judges have emphasised in more recent judgments that they are moving away from simply favouring the resident parent’s wishes and focusing more equally on all parties’ rights—especially the child’s.

Temporary relocation and holidays

Not all moves abroad are permanent. Some parents wish to take their children overseas temporarily, for instance:

• To live with family for a set time
• For educational purposes
• For religious reasons or cultural immersion

In such cases, if the other parent does not consent to the trip, even if temporary, permission from the court is still required. The court’s focus remains on whether the proposed temporary absence serves the child’s welfare and does not disrupt their education or regular contact with the other parent.

Additionally, parents should remember that if a Child Arrangements Order is in place specifying who the child lives with, that parent can take the child out of the country for up to 28 days without needing the court’s permission, provided there is no Prohibited Steps Order or other relevant legal restriction.

Enforcement of overseas court orders in the UK

Another important consideration arises when relocation orders are made in foreign courts. If a parent has relocated from the UK with the proper permissions but then seeks to modify the agreement—such as limiting contact with the left-behind parent—they may run into difficulties enforcing foreign orders in UK courts.

Similarly, if the left-behind parent seeks enforcement of a UK order abroad, they must consider the legal framework of the destination country. Some countries are signatories to the Hague Convention and will honour UK court orders. Others are not, and enforcing orders becomes much more complex.

Mediation and Alternative Dispute Resolution (ADR)

Before initiating court proceedings, courts often expect parents to attempt mediation. Family mediation can help:

• Explore compromises, such as trial relocation periods
• Set detailed contact schedules
• Reduce animosity and improve long-term co-parenting

Mediation is not legally binding unless incorporated into a court order but can form the foundation of a workable and amicable agreement.

Preparing for relocation hearings

A parent intending to relocate must prepare a comprehensive and realistic proposal, including:

• Detailed plans of the child’s new home, school, and local environment
• Evidence of employment or financial support in the new country
• A plan for continued contact with the other parent, including flights, accommodations, and digital contact
• Evidence that the child will not lose ties with extended family in the UK

The court will scrutinise the application carefully. A poorly prepared or vague proposal can be grounds for rejection, even if the relocating parent has genuine intentions.

Do I need to permission to locate to a different part of the UK?

If you wish to move to a different part of the UK – for example, from England to Wales – you do not require specific legal permission. But the other parent could legitimately argue in family court that a long distance relocation may interfere with their ability to see the child or children on a regular basis.

Relocating abroad with a child after divorce is one of the most legally and emotionally complex areas of family law. Every case is highly fact-specific and guided by the principle of the child’s welfare being paramount. The courts weigh each parent’s rights and motivations against the potential impact on the child’s development, happiness, and sense of stability.

While many parents succeed in relocating when proper procedures are followed, others face refusal due to lack of planning, poor communication, or the child’s potential loss of a meaningful relationship with the other parent. Engaging legal advice early, maintaining transparency, and prioritising the child’s best interests are essential for anyone considering such a significant life change.

The post Moving abroad with your child after divorce: the law appeared first on Major Family Law.

The child was referred to in the judgement as ‘T’. When she was removed from her mother and taken into care, a paternity test established that a ‘Mr H’ was her biological father, although he was not named as such on the birth certificate and so had no formal legal status. As a result of this discovery, he was included in the legal proceedings. Mr H applied permission to appeal the decision to take T into care but was refused.

The following year, he tried to oppose an application by her carers to formally adopt T, but he was again refused and T was legally adopted. But Mr H was persistent and two years later, in June 2019, he applied for permission to appeal the earlier refusal to allow him to appeal. Unsurprisingly this was unsuccessful as his application had been made some time after the legal deadline.

Then, acting without legal representation, he applied for a ‘declaration of parentage’. Mr H wanted T’s birth certificate to be amended to show that he was her biological father. As the case proceeded, it became clear that he believed a declaration might also mean that he would be able to play a role in his daughter’s life. The family court explained to him that it would not do so and he would not  receive ‘parental responsibility’ (the legal status of father) even if his application was successful.

High Court Judge Mr Justice MacDonald was asked to consider whether or not the courts had the authority to grant a declaration of parentage in these circumstances – and whether, under section 55A(5) of the Family Law Act 1986, it should refuse to do so because such a declaration would “would not be in the best interests of the child.”

The Judge concluded that yes, the court did have the legal authority to grant Mr H a declaration of parentage even though his biological daughter had been adopted by the other family. He cited section 55A(1) of the Family Law Act, which reads:

“…any person may apply to the High Court or the family court or a declaration as to whether or not a person named in the application is or was the parent of another person so named.”

This could apply to Mr H because his status as the biological father of T was an indisputable matter of fact, even though he had never been her legal father. Therefore, a declaration of parentage would not be in conflict with her status as the adopted child of another family.

The Judge quoted the views of T’s adopted parents:

“T’s adoptive parents harbour a concern that if Mr H’s application is granted it has the potential to cause disruption in the future should Mr H wish to cause difficulties. However, it is also clear, as set out above, that the adoptive parents believe it is important that T should know her full life history, that all official information in respect of her should be correct and without gaps and that, in this context, that they do not object to Mr H’s name being placed on T’s birth certificate.”

Therefore, he ruled the matter should be indeed considered at a subsequent hearing. His judgement ends with a warning for Mr H:

“Finally, it is once again important to ensure that Mr H is clear about the effect of this judgment and the potential outcomes consequent upon it. In particular, I again make clear to Mr H that, although I am satisfied that the court has jurisdiction to deal with his application and should do so at a final hearing, if the court decides to make a declaration of parentage in his favour that declaration will not confer on Mr H parental responsibility for T and will not confer on Mr H any other legal rights with respect to T. Whilst a birth parent remains, as a matter of fact, the biological parent of an adopted child, that birth parent has no legal standing in relation to the child.”

Read the full judgement here.

Photo by Michael Coghlan via Flickr (Creative Commons)

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