A woman who had sex with identical twins separately “within four days of each other” has been told it is not possible to identify which one is the father of her baby.
The mother, who cannot be named for legal reasons, and one of the twins took the case to court after the other brother was named as the father on the child’s birth certificate.
The pair launched the legal action as they wanted to be legally recognised as having parental responsibility for the baby, known as child P.
A family court judge declined to remove the name of the alleged “father” on the birth certificate, prompting the woman and the other twin to take the case to the Court of Appeal in London.
But a panel of judges there have now ruled it is “not possible” to know for sure who the father is.
The court heard that DNA testing could not distinguish which of the men was the father, although scientists may potentially be able to do so in the future.
But Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Stuart-Smith, did say that the twin on the birth register would no longer have parental responsibility until the court hears further arguments.
In a judgment handed down earlier this month, he said: “Currently, the truth of P’s paternity is that their father is one or other of these two identical twins, but it is not possible to say which.
“It is possible, indeed likely, that by the time P reaches maturity, it may be possible for science to identify one father and exclude the other twin, but, for the coming time, that cannot be done without very significant cost, and so her ‘truth’ is binary and not a single man.”
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Judge Madeleine Reardon previously found that “both brothers had had sex” with the woman “within four days of each other in the month when P was conceived”, and that it was “equally likely that each of the brothers is P’s father”.
Sir Andrew said that the first twin “was not entitled” to be registered as the father and that any parental responsibility he had “shall cease” as a result.
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However, the judge added that he was “wholly unpersuaded” to declare that the man was not the father either.
Sir Andrew said: “The failure to prove a fact means that that fact is not proved; it does not mean that the contrary is proved.
“There is a distinction between something being not proven, and making a positive declaration that the fact asserted is not true.”
The case continues.
