A woman who had sex with two identical twins within a span of just four days cannot determine which of them is the father of her daughter, the London Court of Appeal has ruled.
One of the twins was listed as the father on the girl’s birth certificate. The child was identified in court proceedings as “Child P.” His twin brother, with the mother’s support, asked a family court to remove his sibling’s name from the birth certificate and transfer parental responsibility to himself, but Judge Madeleine Reardon refused. She found that “both brothers had sexual relations” with the woman “within four days in the month when the mother conceived,” and that “the probability of each brother being the father is equal.”
The parties appealed to the Court of Appeal in London, which ruled that it could not determine which twin is the father. However, it ordered that the parental responsibility of the twin listed on the birth certificate be suspended for now, pending further proceedings in a lower court.
Sir Andrew McFarlane, the senior judge who heard the appeal with two other judges, said DNA testing confirms that one of the twins is the biological father but cannot identify which one. Each brother, he noted, has a 50% chance of being the father.
In a ruling delivered remotely on March 20, McFarlane wrote: “The present truth as to P’s paternity is that her father is one of the two identical twins, but it is not possible to say which. It may well be, and is likely, that by the time P reaches adulthood science will be able to identify one twin and exclude the other, but at present this cannot be done without very significant cost. Her ‘truth,’ therefore, is not one man but one of two.”
McFarlane added that the twin listed on the birth certificate “was not entitled” to be registered as the father and that his parental responsibility should be terminated. However, the judge declined to rule that this twin is not the father.
“A failure to prove a fact means that the fact has not been proved, not that the opposite has been proved,” he wrote. “There is a difference between a fact not being established and a positive finding that the alleged fact is untrue.”
The judge added that “it is plainly not in P’s best interests for this state of uncertainty regarding parental responsibility to continue,” and said a lower court will decide whether parental responsibility should be granted to one twin, both or neither.
The identities of the child, the mother and the twins have been withheld by court order, and proceedings are ongoing.