Private Children Law Case Update – Summer 2025

KL v BA [2025] EWHC 102 (Fam)

This case concerned applications for child arrangements orders in relation to a child aged 4. The court was tasked with determining whether the effect of a declaration of non-parentage rendered a party’s parental responsibility ‘void ab initio’ (i.e. never having had any legal effect) or whether that party has and retains parental responsibility unless and until it is removed by order of the court, in relation to a man (KL) in circumstances where:

1. he was not married to the child’s mother;
2. he was named on the birth certificate as the father; but
3. genetic testing showed that he is not the biological father.

Facts

The parties were in a relationship from 2019 until 2022. They shared care of the child throughout their relationship and KL believed he was the child’s biological father. The parties registered the birth together and named KL on the birth certificate.

Following the breakdown of their relationship, M informed KL that he may not be the child’s biological father. Genetic testing later showed that the biological father was ST, who was not seeking to play an active role in the child’s life at this stage.

KL considered the child to be his daughter and continued to have regular contact, including overnight and weekend stays. Those arrangements broke down in May 2023 and M then refused to allow unsupervised contact. KL issued proceedings.

In November 2023, KL applied for a parental responsibility order. At a hearing in February 2024, it was argued that he had PR because he was still named on the birth certificate and the order he sought was therefore for ‘the continuation of his parental responsibility in the interim’, and for the issue to be addressed at a contested hearing if necessary. M sought for his PR to be removed. The order confirmed that KL’s PR remained and the issue was to be determined at a future hearing

In November 2024, M made an application for a declaration of non-parentage. At a further hearing in December 2024, KL agreed to the declaration of non-parentage. This judgment on the legal issues regarding PR was reserved.

KL’s case

KL argued that his PR can only be removed by order of the court. It was argued that to deem that he never had parental responsibility would cast legal uncertainty on the decisions already made by him in relation to the child’s upbringing. It was also submitted that the court needed to undertake a welfare analysis prior to removal of PR.

The mother’s case

M argued that KL never, in fact, acquired PR because he was not the child’s biological or legal father so did not satisfy the statutory criteria. It was argued that, where a man is registered as a child’s father, and is subsequently proven not to be, the effect is to ‘render the putative acquisition of parental responsibility void ab initio’ as per Theis J in RQ v PA and another [2018] 4 WLR 169. M relied on the ordinary meaning of the words of s4(1)(a) of the Children Act 1989 (‘CA’) and submitted that the wording reflects Parliament’s intention that only a parent is able to obtain PR by virtue of being named on a birth certificate.

Discussion and conclusion

The judge considered that the starting point was s4(1)(a) CA 1989 and whether KL ever acquired PR in accordance with that provision, applying ordinary principles of statutory interpretation. As a matter of fact, KL was not eligible under that provision to register the child’s birth and acquire PR as he was not the child’s father under the common law, biologically or legally, even though he believed he was.

The Judge agreed with the statement of HHJ Case in re SB (No 2) [2023] EWFC 58 B that “the clear intention of Parliament was to convey parental responsibility only on biological fathers pursuant to section 4(1) of the Children Act 1989 …”.

KL relied heavily on the use of the word ‘person’ rather than ‘father’ in s4(2A) CA 1989, to state that the Parliament’s intention was to make provision for the removal of parental responsibility where a man was wrongly named as the father. The judge disagreed and considered that it would have been possible for the statute to make explicit and clear provision for those circumstances, if that was Parliament’s intention, which it did not.

The judge considered that it was not clear what legal difficulties would arise in relation to decisions taken in the exercise of PR which was then found to be void ab initio – no examples were given.

For those reasons the judge concluded that KL did not acquire PR when he was mistakenly registered on the birth certificate and has never held parental responsibility.

Re A, B and C (Child Arrangements: Final Order at Dispute Resolution Appointment) [2025] EWCA Civ 55

The issue in this case was whether the judge was wrong to make a final order at a DRA. This decision is an interesting commentary on the circumstances in which summary disposal of a case is appropriate in Children Act proceedings and is an important reminder of the wide discretion that judges have when dealing with these cases and controlling evidence.

Facts

The proceedings concerned the parties’ three daughters, aged 11, rising 9 and 7. Proceedings in 2019 concluded at a contested final hearing where, in accordance with the recommendation of a s7 report, M withdrew her application to move with the children to Ireland and the court made a CAO that divided the children’s time equally between the parties.

A further set of proceedings concluded in a three day contested hearing in 2021, following cross applications to vary (M’s being first in time) and a further application from M to move to Ireland. The judge dismissed M’s relocation application and maintained the existing CAO with minor variations.

In May 2023, M filed a further application for variation of the CAO. F filed an application for a s91(14) order. The DRA was listed before DDJ O’Leary who heard the contested final hearing in 2019. She made case management directions and listed the matter for a hearing ‘with a time estimate of 2 hours which is a DRA at which the Court will consider the parties’ applications’.

At that hearing, the judge heard submissions on whether to order a s7 report, indicated she was not minded to order one but adjourned the case for one week, with a view to giving judgment that day. She then heard further submissions on F’s application for a s91(14) order. At the conclusion of that hearing, she dismissed M’s applications and made an order under s91(14) against M for a period of 3 years.

The first appeal

M filed a notice of appeal which essentially took issue with the judge dealing with the case summarily. This included that the judge was wrong to make ‘findings’ against M without M being put on notice or giving evidence and the judge’s refusal to order further investigation by way of a s7 report.

The appeal was dismissed on the basis that DDJ O’Leary had considered the evidence that M relied upon to show a change of circumstances and there was nothing in the evidence that led the appeal judge to conclude that the DDJ’s analysis was wrong.

The appeal judge considered that DDJ O’Leary had not made ‘findings’ in relation to M, but observations of M, noting that it was the role and duty of a judge to come to a view about the character of a case and witnesses.

The second appeal

M then appealed to the Court of Appeal. The grounds of appeal largely mirrored those in the first appeal. M identified the cornerstone of her case as being a challenge to the summary determination of issues at an early stage of proceedings with limited evidence.

M’s fundamental case was that the children’s circumstances required the court to change the arrangements for their care. Although some of the children’s difficulties were known earlier, the extent of their problems had only become evident since 2021 and both judges had failed to recognise that fresh assessment was required. In addition, the DDJ had wrongly concluded there was no justification for fresh inquiries into the children’s wishes and feelings.

F’s position was that the starting point for the DDJ was whether there had been a change of circumstances that justified re-opening the CAO. The DDJ had considered the evidence M relied upon to show a change and concluded no further investigation was required.

Conclusion

The Court of Appeal considered that, at a DRA, even where the parties are unable to reach an agreement, the court has the power to bring the proceedings to an end if satisfied that such a course is consistent with the welfare of the children.

The Court of Appeal quoted Sir James Munby from Re C (Children) (Residence Order: Application being dismissed at the Fact Finding Stage) [2012] EWCA Civ 1489, where he states: ‘…a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter…’

In cases where there have been previous proceedings relatively recently, in which judges have made orders after delivering judgments at contested hearings, it is likely that the court will decide that there should be no further investigation unless there has been a significant or material change in circumstances.

The court noted that the mother’s application was of a relatively limited scope – she sought a variation so that F’s time with the children was reduced from 7 to 4 days out of 14. In addition, there was extensive written evidence considered by the DDJ who was familiar with the case. The DDJ was entitled to conclude that there had been no material change after two previous investigations and thus no solid ground for embarking on a further investigation, there was therefore no welfare issue for the children’s wishes to be canvassed on.

The court was clear that there is a limit to the circumstances in which the court can properly and fairly proceed in a summary way. Essentially it is an issue to be dealt with on a case by case basis, but where the proposal is for a ‘less radical’ adjustment of the child arrangements order, it will often be open to the court to reach a conclusion without a fully contested hearing.

The appeal was therefore dismissed.

Re T and G (Allegations of Alienating Behaviours) [2025] EWFC 15 (B)

This case concerned T, aged 14, and G, aged 12, who, at that time of the hearing, were living separately with their respective parents, T with F and G with M. The central issues before the court were whether alienating behaviours were present, and whether a change of residence should be ordered for G to move to live with F.

Background

The parents separated in mid 2022. M stated that she left with G, alleging domestic abuse, while F remained with T. F disputed this and claimed that he left with T. Initial proceedings in 2022 concluded with a consent order for equal shared care. However, this arrangement quickly broke down. Within six months, T refused to attend contact with M and had indirect text contact only.

In September 2023, M applied for a CAO for both children to live with her. At that point, both children were refusing to see the parent they did not live with. Intervention via an ICFA briefly improved G’s willingness to attend contact with F, under certain conditions.

Following this, concerns arose over M’s relationship with a third party who had a history of domestic abuse, prompting a recommendation from Cafcass that G should live with F. The court declined to change G’s residence in the interim but ordered regular day time contact between F and G and a PSO preventing G coming into contact with the third party. G’s attendance at the contact directed was minimal and they refused to attend at all after a holiday with the maternal family at the end of August 2024.

A second s16A assessment noted further shifts in G’s views in relation to contact with F, such that they now did not want to attend at all, which led to the appointment of a Children’s Guardian.

Discussion and conclusion

The court considered whether either parent had contributed to the children’s reluctance, resistance, or refusal (RRR) to see the other parent, and whether any alienating behaviours were present.

The judge found T’s reasons for not wanting contact with M (frequent arguments, perceived favouritism towards G, and inappropriate communication) to be appropriate and realistic. M had sent pressuring messages to T and made social media posts that further alienated T. Although the court was unclear how strenuously F had promoted a positive image of M to T, he had discouraged T from blocking M on their phone.

G’s reasons for refusing contact with F were inconsistent and had fluctuated. G initially reported F shouting and calling them names. G had even recorded F during arguments with his current partner in 2023. At that stage, G stating that F’s actions were scary was reasonable and G had reasonable justification not to want to spend time with F. However, after ICFA intervention, G resumed some contact with F. G became distressed when told that the Guardian’s recommendation was that they move to live with F. M attributed the cessation in contact to G’s distress over the recommendation and alleged verbal abuse from F, however, there was arguably no clear trigger for the renewed refusal of contact.

The court was not satisfied that either parent engaged in deliberate alienation but found M’s behaviour had been unhelpful. The judge found M’s actions, such as insisting on being present during contact, had reinforced G’s reluctance to see F and she had unjustifiably limited and undermined G’s contact with F and its progress. The judge found that both children’s alignment, affinity and attachment (AAA) is at the root of each of their RRR.

The judge concluded:

1. G’s RRR was initially grounded in G’s own experiences, later reinforced by M’s behaviours and learning of the Guardian’s recommendation. M did not cause but reinforced G’s rejection of F.
2. G was settled with M, particularly due to M’s understanding of G’s autism and educational needs. M had also promoted relationships with F’s extended family.
3. The judge stated that even if some alienating behaviour had been found, it did not necessarily follow that residence would be transferred. The judge found that the potential trauma of disrupting G’s home, school, and relationships outweighed the benefits of change.
4. The judge referred to Munby P in Re H-B (Contact) [2015] EWCA Civ 389, stating that M could not hide behind G’s wishes and feelings. M’s passive approach to contact between G and F (i.e. that she could not physically make G go) was not adequate.
5. While the Guardian’s position was that shared care did not work and that M would not promote contact with the paternal family, the judge believed a carefully managed reintroduction of time with F would benefit G and allow reconnection with T.
6. The Judge considered reintroduction should be gradual, starting with sibling contact and progressing to time with F. All contact should exclude M’s presence or direct involvement, including with handovers.
7. The court directed the Guardian to make a referral to the local authority for therapeutic and practical support, including a neutral professional to aid in reestablishing contact and a possible family mediation.
8. The judge committed to writing each child a personal letter to explain the importance of maintaining relationships with both parents and the reasons for directing contact between G and F. In relation to T, the judge left the option for a relationship with M open, given their age and strength of feelings.
9. A s91(14) order was made against both parents, limiting further applications (excluding enforcement) for three years.