The concept of fatherhood encompasses both biological and legal dimensions, which can often diverge in family law scenarios. Motherhood is certain: there is never any doubt about the biological mother of a child. But before the invention of modern DNA testing, there was less certainty about the child’s paternity. As a result, family law evolved to favour the husband of the mother at the time of the birth: he was presumed to be the father, with all its attendant responsibilities, such as financially supporting the child.

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.