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Unmarried fathers and their children - has the law got it right?

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Anna Pope CPE FAMILY LAW Unmarried fathers and their children - has the law got it right? Traditionally it was accepted that wives and children were of a secondary status to the husband, although the husband and wife in theory owed joint obligations to each other. The fact that the father was perceived as more of a supreme figure in the family, the power conferred on him meant that the obligations went more or less one way. Legitimate children were subject to the commands of their father, while the mother had no legal rights to interfere. Although this may have been the traditional view, it definitely appears somewhat dated. Due to female liberation during the 19th and 20th centuries, the position of women within the family has improved considerably. The legal rights of women have become in line with those of men (as married fathers), and have even become to be in a superior legal position compared to unmarried fathers. Who continue to lack automatic rights over their children.1 It is clear from the Strasbourg jurisprudence that the marriage bond will always give rise to ' family life', including were a bond is legally ended through divorce. But in the absence of a marital relationship, something more than a blood tie, in itself is required.2 Perhaps the easiest way of determining whether a non- marital relationship can be said to create a 'family life' is to compare it with the traditional notion of the family established through marriage.3 The European Court of Human Rights has held that the relationship between parents and child clearly constitutes a bond amounting to family life regardless of whether it is based on marriage. But in order to establish this basis, many factors need to be considered. Consideration has to be given to the fact of whether the parties live or have lived together, that they have demonstrated commitment to each other by having children etc and the length of their relationship,4 these aspects were considered in X, ...read more.


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.21 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'22 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.23 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. ...read more.


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. 1 See Douglas (2001 2 G v Netherlands (1993) 16 EHRR 322 3 See Douglas (2001) 4 See Douglas (2001) 5 (1997) 24 EHRR 143 6 Cretney , Mason, & Bailey- Harris (2003) 7 Cooke (2002) 8 See Douglas (2001 9 Re Agar-Ellis (1883) 24 Ch .D 317 10 See Cretney, Mason, & Bailey- Harris (2003) 11 See Douglas (2001). 12 [1962] P. 161 13 See Cooke (2002) 14 This includes where a child is born as a result of assisted reproduction. 15 See Cretney, Mason, & Bailey- Harris (2003). 16 Adoption and Children Act 2002 17 HRA 1998 18 [2000] 1 FLR 1 19 Cretney, Mason, & Bailey- Harris (2003). 20 See Douglas (2001). 21 Cretney, Mason, & Bailey- Harris (2003). 22 Children Act 1989 s.4 - See Cooke (2002) 23 Douglas (2001). 24 Douglas (2001). 25 [1995] 2 FLR 648 at 657, CA 26 Douglas (2002) pp54 27 See Douglas (2002) 28 [2002] 1FLR 721H 29 See Cretney, Mason, & Bailey- Harris (2003). 30 See Cretney, Mason, & Bailey- Harris (2003). 31 Adoption and Children Act 2002. 32 See Cretney, Mason, & Bailey- Harris (2003). 33 See Martin (2004) 34 SPIG (2002) ?? ?? ?? ?? 1 ...read more.

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