It is reasonable to suggest that the use of the word ‘responsibility’ is more or less a deliberate shift in emphasis away from the focus of ‘rights’, which is intended to reinforce the view that parents should exercise their powers for the benefit of their children. However this cannot cloud the legal reality where on one hand, obligations may be imposed on an individual even if he lacks any specific rights. For example an unmarried father is liable to financially support his child, as he is that child’s parent. On the other hand it is the issue of parental responsibility giving the rights and freedoms to make the decisions regarding the child’s welfare, status and their life choices until they reach the age of discretion. It is this area that has caused such controversy and debate, surrounding unmarried fathers and their children. The question of how unmarried fathers should be treated in law is surrounded by the debate of whether they should be entitled to parental responsibility and have parental rights or not?
At common law the relationship between parent and child was only recognised if the child was ‘legitimate’, where the child was born or conceived at the time when the parents were validly married. However a child born after a marriage had ended by either divorce or death, recognised in Knowles v Knowles is also held as legitimate. It was recognised originally, and previously discussed that the father had the exclusive legal power over his legitimate child. Section .2(1) of the Children Act 1989 now provides that where a child’s mother or father were married to each other at the time of birth, they shall each have parental responsibility of their child and this is to continue with both parents in circumstances such as: Void marriages, Marriage after birth, Adoption and Surrogacy.
It is apparent that married parents (both mother and father) enjoy parental responsibility, purely because their child is legitimate. But even then they continue to enjoy it in a variety of circumstances. The question has to be asked whether the concept of ‘legitimacy’ is actually all that important? Obviously this is an extremely contentious question to ask, but why is there so much discrimination towards unmarried fathers?
Where the parents are unmarried at the time of birth, only the mother has parental responsibility as of right. It is known that the father, in order to receive parental responsibility must either obtain it from the court, have a formal agreement with the mother or if the child is adopted it can be gained by registering the child’s birth jointly with the mother.
It is apparent that several of the arguments in favour of improving the position of unmarried fathers have little to do with the actual interests of the child, despite the constant ‘so called’ recognition that children are at the forefront of legal consideration. It appears that they are fundamentally concerned with doing away with the discrimination that unmarried fathers face as opposed to unmarried mothers. Differential treatment for children dependant on their parent’s marital status is contrary to the anti- discrimination principle of the United Nations Convention on the Rights of the Child. Article.2 States:
“Parties are required to take all appropriate measures to ensure that the child is protected against all forms of discrimination. On the basis of the status …of the child’s parents …”
Article .8 of The European Convention on Human Rights is concerned with protecting family life , and requires states to take positive steps to enable family life to develop normally. If this is the case, why do unmarried fathers have no legal rights over their children? There needs to be a focus on the mother in this respect. If she does not give her consent to include the father in the child’s upbringing, or grant any responsibility to him, he will then have to seek a court order under the Children Act with the case being judged on merit. Surely this has a considerable effect on whether family life can develop normally.
In the case of B v UK a claimed based on the treatment of unmarried fathers with regard to the acquisition of parental responsibility was declared inadmissible. Given that relationships between unmarried fathers and their children ranged from “indifference” and ignorance to close stable relationships” therefore it was reasonable for parental responsibility not to be automatic. Although this is only one case where parental responsibility was not granted, it is reasonable to suggest that the issue of not being able to close stable relationships could be incorporated in many cases of this nature. But does this automatically mean that the father is not competent or loving enough to have responsibility over his child?
The Scottish Law Commission 1992 explained that, to deny a man the right to play a full legal part in his child’s life may be unfair, especially if, for example the mother refuses to marry him. The rationale for refusing equality of position lies in the assumption of the European Court, that some unmarried fathers are’ unmeritorious’ and must be denied legal rights over their children. This maybe so in some instances, but on the other side of the equation married fathers may be irresponsible an uncaring but are not denied their legal rights.
Due to the substantial increase in the number of children born to unmarried parents over the last 25 years, there has been repeated re-assessment of the position of unmarried fathers in English law.
The Law Commission in 1979 suggested abolishing the concept of illegitimacy, in order to give unmarried fathers the same standing as mothers and married fathers in law. However as one would expect this caused anxiety amongst various significant critics, and was therefore replaced with the scheme we know today and one, which is much more, limited, where by fathers can apply to the court to obtain their parental rights.
In 1985 the working paper on Guardianship the Law commission noted that: “ Judicial Proceedings, however may be unduly elaborate, expensive and perhaps unnecessary, unless the child’s mother objects…” the paper recommended that a form of guardianship which would give the father parental responsibility alongside the mother. The Law Commission issued a Second Report on Illegitimacy reaffirming the need for court proceedings, but expressing the hope that such orders would frequently be sought and granted.
The Family Law Reform Act 1987 gave the power to grant parental responsibility to unmarried fathers, and the proposal for agreements was widely supported. This provision is now contained in the Children Act 1989.
Section 4(1) (b) of the Children Act states that unmarried parents may by agreement ‘provide for the father to have parental responsibility for the child’ which he shares with the mother. The main aim or the effect of this agreement is to give full rights and duties on the father and to place him in precisely the same position as a married father. Although a justice of the peace must witness the signing of the agreement, clerk, or court official and registered with the Principle Registry of the Family Division. There is no other requirement outside scrutiny and no attempt to check whether the agreement is in the best interests of the child.
There are various difficulties when involving a court in such instances. Taking proceedings for an order is likely to be a hostile act, signifying the breakdown of the relationship with the mother. This can create difficulties for the court hearing the case. The question that has to be asked is, what is the rational for granting parental responsibility to an unmarried father? It could be said to, uphold the right to respect his and the child’s family life and /or to recognise the reality of the family unit created between parents and the child and unable him to exercise the same powers as a married father. So, taking this into consideration, it is reasonable to suggest that some might say, what is the point of pursuing or granting such an order if the family unit has already broken down, and he his not living with the child. It might be instead to recognise the role a father can play in a child’s life, regardless of the state of the parental relationship.
There are a variety of issues surrounding the concept of parental responsibility, but the majority of issues focusing on the area appear to be discriminatory towards the unmarried father. When applying for a court order the father is subject to specific criteria to fulfil in order to evaluate whether he is suitable for a parental responsibility. But it is reasonable to suggest that this ‘so called’ criteria is also in place, not jeopardise the position of the mother as the primary carer.
The courts have laid great stress on the assumption that it is in the child’s interests to know their father, or at least know that their father has acknowledged them. But the courts have often relied on mechanisms of minimising the legal importance of the order, to reassure the mother, that her position will not be undermined. As Ward LJ put it in Re S:
“ It is wrong to place undue and therefore false emphasis on the rights and duties and the powers compromised in ‘parental responsibility’ and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood for which nature has already ordained that he must bear responsibility.”
This could be viewed as a problematic statement, due to the fact that the father already has the status of parenthood by being recognised as the father, and the fact that parental responsibility is intended to flesh out this statement by granting precisely the rights, duties and powers, otherwise there would be no point in the father acquiring it.
In the 1950’s when the stigma of illegitimacy was great; unmarried mothers were advised to adopt their own children in order to conceal illegitimacy, improve the child’s status and prevent the father interfering. Adoption orders to unmarried mothers were anomalous since they did not end the father’s obligation to support the child.
Adoption has always been open to both married couples and single people but only one member of an unmarried couple could become the adoptive parent. Their partner could obtain a more limited legal relationship with the adopted child through a residence order. In Re B a residency order was granted, and the father had unfettered powers to take the child abroad, whereas the mother was barred form making any applications without leave. On appeal the House of Lords restored the adoption order to the father on the basis that the Court of Appeal had had exceeded its power to review the judges discretion. It rejected the narrow interpretation of the circumstances in which adoption could be granted to a parent.
When the Adoption and Children Bill was introduced to parliament, it retained the requirement of marriage for adoption by couples, although it allowed for special guardianship orders in favour of in favour of unmarried couples. This was subject to a lot of criticism, saying that allowing adoption of a child by one member of a couple was confusing for the child, and would put other prospective adopters off adoption. But, the Government took the view that unmarried couples should not be permitted to adopt. However the amendment was accepted later, permitting unmarried couples to adopt.
The Adoption and Children Act 2002, provides that an unmarried father whose name is entered on the birth certificate by joint registration or joint re-registration will automatically get parental responsibility for his child. The act of registration is treated as an agreement between the parents, but the provision does not operate retrospectively and the court will have the power to remove parental responsibility. The Adoption and Children Act 2002 aligns adoption law with the relevant provisions of the of the Children Act 1989 to ensure that the child’s welfare is the paramount consideration in all decisions relating to adoption. The Act provides for adoption orders to be made in favour of single people, married couples and unmarried couples. But most importantly for the purpose of this discussion the Adoption and Children Act amends the Children Act 1989 to provide that an unmarried father acquires parental responsibility where he and the child’s mother register the birth of their child together.
Where an unmarried father does not have responsibility the law does not treat him as a stranger to his child, as he is a parent within the meaning of any post 1987 statute. As this is the case he does not require leave to seek an order giving him parental responsibility. There is a duty to determine the father’s wishes and feeling, where the child is in the care of the local authority. The father therefore has some rights to be involved. However in relation to the issue of adoption it is a different matter. The father’s consent is not required for adoption arrangements and he has no statutory right to be notified of the adoption proceedings unless he is maintaining the child. Obviously this is rather controversial and the courts have recognised that where fathers are capable of claiming rights under Article.8 of the European Convention of Human Rights. They should be notified of the adoption.
There is an expectation that parents will come to their own agreements on issues affecting their children without the need for court proceedings, but in some situations there is a need to initiate court proceedings. Due to different circumstances, not just a parental responsibility order can be issued. Orders such as the contact order or the residence order are also issued. Although it is reasonable to suggest that the parental responsibility order is the most important in relation to unmarried fathers and their children.
Research shows that seven out of ten people wrongly believe that the father of a child automatically has a say in his child’s future, regardless of whether he is married or not.
Under new legislation, unmarried fathers of children born after December 1st, 2003 have the same rights as mothers as long as their name is entered on the birth certificate. It is obvious that there are no problems with a child being born outside wedlock, as this is a modern day occurrence, providing the couple stay together. The problems arise when the couple split up or the mother dies. In those situations fathers without parental responsibility do not have any legal rights and cannot automatically be involved in making major decisions about the life of their child or children. It is shocking that with out this parental responsibility order the father cannot even consent to emergency medical treatment. Surely the law has not got it right in relation to unmarried fathers. The Government needs to raise far more awareness about the importance of parental responsibility.
The Current law in relation to unmarried fathers and their children does not only appear unjust in various places, but it is also quite confusing. Men are considered fathers when it comes to responsibilities such as paying child support, but not when it comes to legal rights. In response to a government paper on the situation, Families Need Fathers State: ‘it is no longer reasonable to maintain any distinction between the legal position of married and unmarried fathers in relation to their children.”
It is reasonable to suggest that the law on fathers’ rights is outdated. It could be said that this is due, to the fact that the law has failed to keep pace with changes in society over the last 20 years. The law should be changed in order to preserve or protect the principle of equal parenting time. One of the key problems with the present law is the fact that there is limited authorisation imposed on mother who has parental responsibility, but refuses to grant contact or some responsibility to the father.
The fact that, all fathers should automatically acquire parental responsibility was not included in the Children Act 1989, is said to be a clear discrimination against fathers. Obviously there are fathers who do not deserve parental responsibility, just as there are married fathers and many married and unmarried mothers who do not deserve it. It may be more understandable why married mothers and fathers automatically receive parental responsibility, as it comes down to the legitimacy of the child. But is legitimacy such an important factor in determining whether a child will be brought up with a mother or father because they are or were married when the child was conceived or born? Even so, why is an unmarried mother automatically granted all legal rights to that child? The law has tried to over come the problems of legitimacy, but has still failed to miss out the vital importance of giving the unmarried father legal rights to his child. In order to maintain a family unit and stability for a child, rights need to be given not only to unmarried mothers but fathers to. In this day and age there has been a shift from the married family unit to the unmarried family unit. Although this may be contentious there seems to be no apparent difference, and the law needs to be change in order to encompass this. The present position in relation to unmarried fathers and their children is a clear indication that the law has not got it right.
G v Netherlands (1993) 16 EHRR 322
Cretney , Mason, & Bailey- Harris (2003)
Re Agar-Ellis (1883) 24 Ch .D 317
See Cretney, Mason, & Bailey- Harris (2003)
This includes where a child is born as a result of assisted reproduction.
See Cretney, Mason, & Bailey- Harris (2003).
Adoption and Children Act 2002
Cretney, Mason, & Bailey- Harris (2003).
Cretney, Mason, & Bailey- Harris (2003).
Children Act 1989 s.4 – See Cooke (2002)
[1995] 2 FLR 648 at 657, CA
See Cretney, Mason, & Bailey- Harris (2003).
See Cretney, Mason, & Bailey- Harris (2003).
Adoption and Children Act 2002.
See Cretney, Mason, & Bailey- Harris (2003).