When is a parent, a legal parent? Legal considerations every would-be (international) parent should know about

First, from the English law perspective

This has been at the heart of several Court of Appeal judgments in England recently. 

In England and Wales, registration is usually evidence of legal parentage but, that is not always the end of the story. Where there  is dispute between would-be parents, the court can make declarations under the Family Law Act 1986. The Court of Appeal tackled the issue in the case of P v Q and F (Child: Legal Parentage) [2024] EWCA Civ 878, confirming that a child's legal parents are the gestational mother and the genetic (biological) father. This is not a presumption, but a principle of law. P and Q (a married same sex couple) attempted to conceive through artificial insemination (AI) and found a sperm donor (F). They agreed that P would carry the child. In between the attempts at AI, F and P had intercourse. P was registered as the child's biological mother and Q as her second legal parent. When the marriage failed, P sought a declaration that in fact, F, was the legal parent. Had the child been conceived by AI, Q would have been the other legal parent under the provisions of the HFEA 2008 (Human Fertilisation and Embryology Act 2008). Had the child had been conceived through natural insemination, then F would have been the legal parent. Since it was not possible to prove this either way, the court declared that sperm donor, F was the legal parent and Q was not. 

We can identify a trend here as the court was faced with similar facts in the case of RF, AF and FA [2025] EWFC 142, earlier this year. But the issue was carefully and sensitively considered at the end of last year when the Court of Appeal heard three conjoined ((1) Re: J (a child) (2) Re: M-S-K-B (children) (3) Re: P (children) [2025] EWCA) at the heart of which was an exploration of the legal consequences where an individual who is not, in law, a child's father, is nevertheless registered as such on the child's birth entry. 

The issue which fell for determination in these particular appeals was whether the effect of a declaration of non-parentage in respect of a man who is not married to a child’s mother and is named on the child’s birth certificate as the father, but whom subsequent genetic testing shows is not the child’s biological father, renders his putative acquisition of parental responsibility void, or whether he has and retains parental responsibility that can only be removed by order of the court. In one of the conjoined appeals, it had not been possible to determine (though DNA evidence) which of two identical twin brothers was the biological father and there was a 50:50 finding as to the likelihood of their being genetic parents. 

In its judgment (reported as Re J (Loss of Parental Responsibility) [2026] EWCA Civ 344), the Court of Appeal confirmed that the definition of 'father' in England and Wales for the purpose of children proceedings under the Children Act 1989, is grounded common law meaning that parental responsibility cannot be acquired by virtue of being registered as a father on a birth certificate where there is no genetic or biological link. 

Why is this important? 

There are many categories of parent (legal, psychological) and at the end of the day, the most important thing, surely, is for a child to have loving, responsible and committed parents, whatever their legal status? But legal parentage is important for a whole host of reasons.  

Legal parentage in England and Wales is distinct from parental responsibility, although it is connected to it. A legal parent is financially responsible for their child, regardless of any parental responsibility orders or living arrangements. 

Aside from the most important considerations as to involvement in a child's life and issues for the child about their identify, legal parentage affects inheritance rights, nationality and citizenship rights for the child, as well as birth registration and identity rights. 

Why is this especially important for separating couples?

For couples who are separating, legal parentage affords automatic standing to make child arrangements orders, specific issue orders, prohibited steps orders, and where necessary, parental responsibility orders. Without it, permission to apply must first be sought from the court. 

But once granted, parental orders fix parental status - only adoption orders or parental orders made following surrogacy can remove legal parentage.

So, what's the position in Hong Kong?

In Hong Kong there have been a number of interesting cases involving the meaning of 'parent' in the context of same sex couples. Hong Kong follows the UK in having very similar provisions in the Parent and Child Ordinance Cap 429 (PCO) to make a parental order and the Human Reproductive and Technology Ordinance Cap 561 (HRTO). However, same sex marriages have yet to be legalised in Hong Kong and cases of this nature often involve same sex parties who have married abroad or any party who has entered into surrogacy arrangements overseas. 

In the landmark case involving a heterosexual couple, FH & MH v WB & HB [2019] HKCFI 1748, the importance to the long-term welfare of the child, born to a surrogate, in making a parental order was recognised. So long as the requisite conditions ae fulfilled, a parental order will normally be made.

Who is a legal parent?

The question as to who is a legal parent was recently considered in a case we had involving a same sex couple: NF v R (Parentage) [2023] HKCFI 2233. The parties were married overseas and, in order to have their child, they had undergone reciprocal in vitro fertilisation (RIVF) whereby the egg was extracted from R and fertilised with a donor sperm to create an embryo which was then placed into NF's uterus. Under Hong Kong law, NF, as the gestational mother, was the child's legal parent, but R did not have any status, even though she was genetically bound to the child, whereas NF was not. The parents sought to rectify this by applying to enter R onto the birth registry. The Registry refused and on the basis that s9 PCO stated that "the woman who is carrying or has carried the child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be regarded as the mother of the child". The only space on the birth registry was for a 'father' which clearly was not correct either. The parties then went to the High Court for a declaration of parentage under the PCO. The judge went to considerable lengths to try to recognise R as a parent – clearly both parties could fulfil the requirements in respect of social and psychological parenthood - but found that she could not make a parental order in this case. Instead, she declared that R was a 'parent at common law', pursuant to the court's parens patriae jurisdiction.

Armed with this order, R renewed her request to register herself as a parent at the birth registry, which was refused. The refusal was on the basis that the Birth and Deaths Registration Ordinance Cap 174, would only allow reregistration with a parental order, which had been rejected. The parties applied for a judicial review which was allowed in September 2025: K (an infant) by his next friend R v the Secretary for Justice and others [2025] HKCFI 1974. The judge did not agree with his sister judge in respect of the declaration of parentage at common law as this order could not deal with a legal relationship, or at least not one with legal consequences, and had no practical effect. 

What about the child's rights?

The Judge did find that various articles of the Hong Kong Bill of Rights were engaged, for example that the child had a right to establish and develop a relationship with his 'parents'. If legal recognition of his relationship with his parent was required for him to meet ‘basic social requirements’ or dispel any notion that he was inferior because his relationship was not recognised, its absence would identify and constitute an interference with his rights under art 14. The judge also emphasised the adverse impact on the child of only having one parent on the registry: it looked like he was from a single parent family which was inaccurate and confusing. He found that K's children's rights to privacy and family had been engaged and that there had been encroachment on or infringement of those rights. 

It was also noted that a guardianship order could not exist beyond the child's majority and could not deal with the problem of his birth certificate, and neither a guardianship nor an adoption order acknowledged the child's genetic link to his parent. The Judge was cognisant of the fact that this was an application made by the child and for his best interests. On the basis that the PCO was intended to further the best interests of the child, it would seem that the underlying assumption was that the child’s ability to apply to the court for a declaration that a particular person named in the application was in law his parent was itself in that child’s best interests.  It was difficult to see why that should be different depending on whether the genetic link was between a man and the child or a woman and the child. 

Lacuna in the Law

The problem with these cases in Hong Kong is that there is a lacuna in the law, which is best rectified by legislative reform which, even with the best intentions of the judiciary, may take years to achieve. 

In summary, the question of who qualifies as a legal parent is a complex issue, shaped by evolving legal frameworks, case law, and societal attitudes, both in England and Wales and Hong Kong. While the courts strive to address these challenges with sensitivity and regard for the best interests of the child, the law often struggles to keep pace with contemporary family structures, particularly in cases involving assisted reproduction and same sex couples. Ultimately, legal parentage carries significant ramifications—affecting not only parental rights and responsibilities, but also the child’s identity, inheritance, and citizenship. Until legislative reform bridges the gaps and clarifies ambiguities, would-be parents must remain vigilant and informed about their legal status and the potential consequences, especially when navigating international contexts or non-traditional family arrangements. Above all, the welfare and rights of the child should remain central to any legal determination, ensuring that every child can benefit from secure, recognised, and loving parental relationships.