Declaration of paternity – denied

This is a very strange case and a follow-up to the classic post

Joe and the Juice… | suesspiciousminds

N, Re (Paternity: Unregulated Sperm Donor) [2026] EWHC 878 (Fam) (21 April 2026)

https://www.bailii.org/ew/cases/EWHC/Fam/2026/878.html

Mr Robert Albon, who is an unlicensed sperm donor and who has been involved in family law proceedings as referenced in the blog post above, was the genetic father of child N. There was absolutely no dispute that he was N’s genetic father, and he made an application in relation to N, one element of which was seeking a judicial declaration that he was the child’s father.

1. In A v B, C and D [2023] EWFC 333, HHJ Furness KC, sitting as a deputy High Court judge, heard private law proceedings between the birth mother of a 2 year old child and her wife. The child had been conceived by the mother self-administering sperm provided by Mr Albon. There had been no agreement that Mr Albon would have any role in the child’s life. The judge found that Mr Albon’s subsequent application for a declaration of paternity and a child arrangements order in his favour under CA 1989, s 8 were motivated principally to support his immigration position in the UK.
2. HHJ Furness KC found Mr Albon to be ‘a man who has a complete absence of sensitivity or empathy, is wholly self-centred and will stop at nothing to get what he wants’. The judge refused Mr Albon’s application for parental responsibility and his application to change the child’s name to his. His application for direct contact was refused, but a limited indirect contact order was made. With respect to Mr Albon’s application for a declaration of parentage under FLA 1986, s 55A, the judge concluded that it was not in the child’s interests for the court to hear the application (under s 55A(5)).

Mr Albon on his own account has fathered around 180 children. There is no simple way for any of those children, once they become adults to be confident that they are not accidentally entering into a relationship with someone who would be a biological half-sibling.

One can see when reading the history of cases that Mr Albon had been involved in, that the people who had children with him would have extremely good reasons for not wanting him to be involved in the future, and the risk that a declaration of parentage would open the door to future litigation.

What is the legal basis for NOT making a judicial declaration when the factual matrix is not itself in dispute?

s55A Family Law Act 1986 (italics mine)

55A Declarations of parentage.
(1) Subject to the following provisions of this section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.
(2) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the persons named in it for the purposes of that subsection—
(a) is domiciled in England and Wales on the date of the application, or
(b) has been habitually resident in England and Wales throughout the period of one year ending with that date, or
(c) died before that date and either—
(i) was at death domiciled in England and Wales, or
(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.
(3) Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application (but this is subject to section 27 of the Child Support Act 1991).
(4) The excepted cases are where the declaration sought is as to whether or not—
(a) the applicant is the parent of a named person;
(b) a named person is the parent of the applicant; or
(c) a named person is the other parent of a named child of the applicant.
(5) Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.
(6) Where a court refuses to hear an application under subsection (1) above it may order that the applicant may not apply again for the same declaration without leave of the court.
(7) Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

s58 Family Law Act 1986

General provisions as to the making and effect of declarations.
(1) Where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.
(2) Any declaration made under this Part shall be binding on Her Majesty and all other persons.
(3) A court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.
(4) No declaration which may be applied for under this Part may be made otherwise than under this Part by any court.

So where the declaration sought is in relation to a child, the Court may refuse to even hear the application if it considers that the determination of it would not be in the best interests of the child (s55A (5)) or if the Court does hear the application and decides that the truth of the proposition to be declared is in the best interests of the child the Court SHALL make the declaration UNLESS doing so would be manifestly be contrary to public policy (s58(1))

The latter seems to be a high bar, and the President of the Family Division made it plain that the decision in this case related to Mr Albon specifically and was not intended to be a principle to be applied to all or other sperm donors – it is very fact specific.

The Court looked at the existing authorities that had grappled with s55A and s58 and drew from them these principles

Drawing matters together, the following points arise from the, albeit few, extant reported decisions:

a) Parliament has established a firm default position by FLA 1986, s 58(1) that, where the truth of the proposition to be declared is proved to the satisfaction of the court, the court must make the relevant declaration;
b) The obligation to make a declaration flows from the establishment of the truth of the proposition, it is not an exercise that involves the court in making a discretionary welfare decision or a value judgment;
c) The court may, however, refuse to hear an application for a declaration of parentage if it considers that the determination of the application would not be in the best interests of the child [s 55A(5)]. The question is not whether it would be in the best interests of the child for the applicant to be declared to be their parent, it is whether determining the application would not be in their best interests;
d) The burden of satisfying the negative test in s 55A(5) is upon the party who makes that assertion;
e) The court is only released from the obligation to make a declaration imposed by s 58(1) where to do so would manifestly be contrary to public policy;
f) Section 55A(5) does not invite the court to carry out a simple assessment of whether it is in the child’s best interests to have a determination of the application. It empowers the court to refuse to hear the application only if it considers that determining it “would not be in the child’s best interests”. By the time section 58 is reached, the impetus towards the declaration has become even stronger. It will be made unless to do so would not only be contrary to public policy but manifestly contrary to public policy;
g) The court’s powers under s 55A(5) and s 58(1) are separate, distinct and fall for consideration at two different stages of the process. They should not be confused or conflated with each other. It is unlikely that an application will proceed to hearing, without being dismissed under s 55A(5), yet fail at the conclusion of the process on welfare grounds which are such as to establish a situation manifestly contrary to public policy;
h) When determining an issue under s 55A(5) the gateway considerations that are likely to be engaged in most cases will include:
i) The children’s ascertainable views about the application;
ii) Whether there is evidence that the mere fact of considering the application would be likely to be harmful to the children;
iii) Whether the application, if granted, would be likely to have such deleterious consequences for the children that I should not even proceed to determine it;
iv) How determination of the application fits with the Article 8 ECHR rights of the individual members of the family.

Mr Albon’s case was based on the fundamental principle of the importance of identity to children and also the limitations that a declaration would have.

The mother represented by Mr Powell, and Guardian represented by Deidre Fottrell KC, opposed the declaration being made.

1. 
   With respect to the issue of public policy, Mr Powell accepted that the deployment of the word ‘manifestly’ in s 58(1) elevates the test that must be met so that the making of a declaration must be clearly contrary to public policy. Notwithstanding that test, Mr Powell submitted that it was made out in this case by:
2. For the children’s guardian, Ms Deirdre Fottrell KC accepted that the bar set by s 55A(5) is a high one. A declaration of parentage is a matter of the utmost gravity, but nevertheless the guardian’s case is that s 55A(5) is satisfied in this case. Ms Fottrell relied upon the ‘extraordinary’ findings made by HHJ Furness KC and Poole J in support of her submission in the context of best interests. It was, she submitted, of particular concern to observe the way, as found by the two judges, Mr Albon has sought to step in, and step out of, the lives of families to whom his only connection is that he has supplied a donation of sperm. Ms Fottrell drew attention to a passage in Mr Albon’s witness statement, which is dated 26 April 2025 (thus 6 months prior to the hearing) in which he says: ‘My interest in [the child] is simply a father’s love for his [child], and wishing to develop a father/[child] relationship’. Mr Albon’s more recent, very carefully drafted statement, should not be taken as a true account of his intentions.
3. Ms Fottrell drew attention to the guardian’s assessment of Mr Albon:
4. Ms Fottrell described Mr Albon as a ‘shape shifter’, who was motivated by self-interest, for example his immigration status, rather than that of the children he has fathered or their mothers. Once formally named as ‘father’, Mr Albon can apply for orders under the CA 1989 as of right, making the mother in this case very vulnerable to his intervention, with a corresponding potential impact upon her ability to care for the child.

The Guardian also went on to stress the public policy implications of Mr Albon clearly carrying out a for profit sperm donation business which has not been regulated by the HFEA and without any of the protections that regulation would provide, arguing that it would be manifestly contrary to public policy for the Court to in effect endorse this by making the declaration that Mr Albon sought. #

The Court held that the very high bar for s55A had not been reached.

From N’s perspective, in circumstances where it is agreed that Mr Albon is his legal father, and where it is also agreed that he will be told of his parentage and the circumstances of conception in an age appropriate way, save for the legal status that a declaration would afford to Mr Albon by enabling him to apply for orders under the CA 1989 without the need for permission to do so, there is little in the ‘best interests’ balance in favour of refusing to determine the application. For the reasons to which I have already referred, the fact that the other parent may be very difficult and seek to intrude is not an uncommon feature of cases in the Family Court. Where that parent’s litigation behaviour, or use of parental responsibility if held, is contrary to the welfare of the child, the court is able to deploy orders limiting that parent’s actions and, if justified, imposing a filter on their ability to apply to the court. When set against the priority that Parliament has attached to the making of a declaration of parentage where the underlying facts are proved, I do not consider that the case is made out for refusing to determine the application on the basis that to do so would not be in N’s best interests.

For s58 though

Turning to s 58(1), the position is very different. It can be taken shortly and in stages.

Starting with the basic parameters set by Parliament in the legislation, by ‘processing’ and ‘distributing’ sperm, as defined by HFEA 1990, s 2, Mr Albon is acting in breach of s 4(1A). ‘Processing’ means ‘preparation, manipulation or packaging’ of sperm. By generating a dose of sperm and then passing it on for use by a recipient, whether this be by post or by immediate delivery at the home address, Mr Albon is engaged in processing it. By passing the donated sperm over to the recipient he is distributing it, just as much as if he had sent it by post or other means. By s 4(1A), it is an offence for any person to ‘process or distribute any gametes intended for human application except in pursuance of a licence or a third party agreement’.

As a result of the HFEA 1990, IVF treatment became lawful for the first time. It is clear that Parliament sought to maintain tight control over the processes involved by only permitting the process and distribution of gametes within the licensed scheme. There is a degree of control even within that scheme over the introduction of sperm from any individual donor, so that their gametes may only be used for the creation of up to 10 families, is further demonstration of a tight policy.

In establishing the narrowly defined permissive route for the processing and distribution of gametes, and by rendering any non-permitted processing or distribution unlawful, Parliament was clear in marking out the limit to which, as a matter of public policy, such activity was acceptable. From this first perspective, it is clear that Mr Albon’s engagement in providing sperm to N’s mother, by visiting her home and producing a donation which he then passed to her for her use in inseminating herself, is contrary to public policy as established by HFEA 1990, ss 2 and 4(1A).

It was of note that, in reply to Ms Fottrell’s submissions on this point, Ms King, for Mr Albon, understandably did not dispute the legal foundation of the case being put forward and limited her response to arguing that this court should not import Poole J’s findings into the present case. She also suggested that Parliament had not made the specific actions of Mr Albon unlawful. Neither of these two submissions is sustainable. Poole J’s findings were made after a fully contested hearing, in which Mr Albon gave evidence. It is apparent that many of the findings are based upon Mr Albon’s own account. There has been no appeal against those findings and there was no attempt in the present proceedings to reopen the factual enquiry. For the reasons that I have already given, Parliament has been explicit in making it unlawful to process and/or distribute sperm without a licence.

Moving on, and turning to a second perspective, Parliament has provided that where the sperm of a man, who has donated as part of the statutory scheme, is used for the purposes of insemination within that scheme, that man is not to be treated as the father of the child [HFEA 1990, s 28(6) and HFEA 2008, s 41]. In the present case, sperm has been provided by an individual who advertises himself as providing a sperm donation service. Those who use his service, like the mother in the present case, see the engagement as purely transactional with no continuing consequence. Whilst there is no express provision in the legislation to this effect, it seems most unlikely that Parliament would have taken a starkly different approach to a non-licenced donor who has acted as Mr Albon has done on so many occasions (whether as a formal ‘business’ or in any event). I, therefore, hold that it would be contrary to public policy for Mr Albon to be treated as the father of N by the court granting a declaration of paternity naming him.

The third perspective by which to evaluate the public policy issue is to look at the activities of Mr Albon more generally, as found by Poole J and HHJ Furness KC, which are the very antithesis of that which is permitted under the HFEA scheme. Not only are his actions outside the regulatory scheme, they are unregulated in a wider, moral, sense. On the basis of the findings made by the two judges, there is no indication that Mr Albon’s behaviour is governed by any recognised moral principles, or is informed by the need for any of the checks and assessments present in the statutory scheme to ensure the genetic integrity of the process or to guard against any mental or physical health issues. As Poole J held, the risks that his customers take in using a prolific, unregulated sperm donor who operates as Mr Albon does, are obvious [paragraph 67, see paragraph 17 above]. Mr Albon has been found to be indiscriminate about the women to whom he donates his sperm. As Poole J found, there is a risk that his service may attract those who do not want questions asked, or records kept, and do not want a child welfare assessment. On the findings made, the proportion of vulnerable women who turn to Mr Albon is high, yet ‘Mr Albon does not trouble to question the history, character, and health of the women who use his service. He does not give any consideration to their ability to bring up his child. He was quite frank that he does not believe it to be his concern’.

At paragraph 100 of his judgment [see paragraph 20 above], Poole J lists ‘some significant risks and potential complications’ arising from Mr Albon’s cheap, ‘no strings attached’ service. I agree with, and endorse, the list of some 8 factors identified by Poole J in this context. These are important matters which may not only have an impact on an individual user of Mr Albon’s service, they are of wider societal importance. Looked at through this wider perspective, Mr Albon’s behaviour, sustained as it has been for over a decade, provides an illustration of just what extensive unlicensed sperm donation can involve. It is, as I have said, the very antithesis of the Parliamentary scheme, and the illustration provides justification for the public policy decisions taken by legislators.

Taken individually, but also looking at them all together, it is clear that it would be manifestly contrary to public policy to endorse Mr Albon’s activities, and his particular engagement around the conception of N, by making a declaration of parentage in this case. The bar set by s 58(1) is a high one, but the clarity of the statutory provisions and the scale on which Mr Albon has operated outside those provisions make it manifest that what he has been doing is contrary to public policy as established by Parliament in the HFEA legislation.

The outcome of the application is that, whilst the truth of the proposition to be declared (namely that Mr Albon is N’s father) is proved to the satisfaction of the court, the application for a declaration of parentage is dismissed on the ground that to grant it would manifestly be contrary to public policy.

By agreement, there will be a declaration that EF is not N’s father.

Before concluding, it is necessary to state that the facts of this case are extreme. It does not follow that all applications for a declaration of parentage by those who donate sperm to assist in the conception of a child outside the HFEA scheme will be dismissed on public policy grounds under s 58(1). It is not uncommon for conception to be arranged through sperm donated by a friend of the mother, or by some other single, informal arrangement. This case has involved sperm donation on a wholly different scale. Nothing that I have said in this judgment is intended to impact, one way or the other, on such cases, which will continue to be determined on their own facts as they arise.