Cambridge Family Law Practice

A man listed as the father of twins born following fertility treatment abroad has made a successful bid for a declaration that he is not their father after all.

The twins in question, referred to the judgement as A and B, were conceived via in vitro fertilisation at a clinic in Cyprus at the end of 2007. The couple married in April the following year, and the birth followed in July. The man, referred to as ‘Mr J’, was named as the father on the children’s birth certificates.

Unfortunately, the marriage did not last and the couple separated the following year. They eventually divorced in 2011. Afterwards Mr J continued to pay child support but had no further contact with A and B.

Eventually, in 2021 he challenged his legal obligation to continue paying child support. Mr J did so on three grounds:

1. He was not the twin’s biological father.
2. He had not been married to the mother at the time the children were conceived.
3. The fertility clinic in Cyprus was not subject to UK law.

A child support tribunal told him that he would need to obtain a legal declaration of “non-parentage” in order to end his child support obligations, and he duly applied to the family courts.

In court, Mr Justice Cobb explained that parentage was a factual matter, but nevertheless, the courts could refuse to rule on an application if doing so would obviously not be in the best interests of the affected children.

Both the mother and the twins opposed the Mr J’s application. The mother argued that he had been fully involved in the IVF treatment from the start and had agreed to become a father to A and B, explaining that she could not understand:

“…how declaring that [the children] have no legal father in the world is ever in the children’s best interests? especially when [B] clearly feels very rejected”.

B herself said:

“…if he does not want visitation that’s fine but he signed all these papers, why would he suddenly change his mind. He should continue with the money because it’s helpful”.

However, A and B’s legal guardian, who was appointed for the case, took the view that it would not be:

“…emotionally beneficial to either of [the children] to hold on to the idea of Mr J being their legal father simply as a source of monthly financial contributions.”

Mr Justice Cobb continued:

“She advised me that A and B are ‘resilient children’ and that ‘whatever decision the court makes, it is likely that the children will be able to take it in their stride and move on with their lives’.”

The Judge concluded that Mr J could not be regarded as the twin’s legal father under UK law. He declared:

“The route to the declaration sought by Mr J is clearly marked by statute [written law], and frankly leads in only one direction. Given that (i) Mr J and the mother were not married at the time of A and B’s conception; (ii) that the conception took place otherwise than in a clinic licensed in the UK; and (iii) that the conception was achieved using sperm which was not that of Mr J, section 28(3) [of the Human Fertilisation and Embryology Act 2008] does not treat Mr J as A and B’s father. The fact that Mr J was erroneously registered as the children’s father on their birth certificates does not itself confer legal parentage on him. That is the simple and definitive conclusion to be drawn on these facts and I shall make the declaration accordingly.”

The ruling is available here.