Parental responsibility is often granted to fathers to confirm the commitment by a father. Deech refers to the US Supreme Court where unmarried fathers personal contacts are preserved by the Due Process Clause only if there is commitment shown, "...a mere existence of biological links does not merit...protection". In the English courts there is also a suggestion that parental responsibility is almost an automatic right. In Re S an unmarried father who had a conviction for receiving paedophilic photos of young girls was granted parental responsibility. Ward LJ. Gave two reasons for his willingness to grant parental responsibility, first that it was a symbol for the father but second that it was also a message to the child "...[to show] that their father is committed enough to wish to have parental responsibility conferred upon him". Thus Ward LJ. balances the needs of the father and child who he suggests need to know that the father cares. It was conceded in this case that the child had suffered some determent through not seeing her father.
In Re C parental responsibility was granted in anticipation that the father may, at a later stage wish to take up the control of the child. This is often sighted as a reason why parental responsibility should be granted, in that if the mother becomes unable to care for the child then it can be cared for by the other biological parent. Another reason is to allow the father a say in future issues such as adoption. In Re H the father was granted parental responsibility in spite of the hostility between him and the stepfather, or perhaps because of it, so as to allow him notification of any major decision regarding adoption. The courts also suggested that the mothers relationship may fail with the stepfather and the father must be ready to step in if needed. This extends the principle that families need father, especially to pay their way. Alternativly Re P suggest that the granting of parental responsibility is nothing more than a consolation to "...help [the father] get over feelings of bitterness..." upon separation. Hoggett suggests that it is not unnatural for fathers to feel bitter as they are often the party who does not wish the relationship to break-up. Moreover children may not be able to start a new life until the bond of parental responsibility is broken. Re H shows that despite the child being in a nuclear family unit the biological father still retained some veto towards the child's integration into that unit. In Tyler-v-Tyler a mother was not allowed to emigrate with the child to Australia to be with their relatives because this would eliminate the fathers right to have physical contact with the child. Deech points out that this seems contrary to natural justice in that the father can enforce his right to see the child but the child has no right to force the father to see him. She goes further to conclude that it is only financial support that a child has any right against the natural father.
A child's needs are often difficult to ascertain, Hoggett suggests that children are "...subliminally indifferent to their parents' unhappiness as long as it does not concern them...". The courts are provided with a checklist of what constitutes welfare of the child but this is so broad as to allow subjective over objective judgments. Roche suggests that the courts use a "..rule of thumb..." approach that children are often better cared for by the mother. However there is no equivocal research to suggest the absence of one parent harms a child but the courts take a different view. In May-v-May a father was granted joint custody to allow the father the role of disciplinarian. It would seem that if a child's needs are served by having two parents then it does not conflict and only enhances the need for fathers' rights. This seems to be the reasoning behind Ward LJ. in Re S. when granting parental responsibility, as a form of status, to a father.
If we look at the situation where the father is absent, Bradshaw and Miller state that 43% of separated fathers do not have contact with their children. If only 30% of children are born out of wedlock then married fathers are, to an extent, failing to use their parental responsibility at all. Parental responsibility will not be terminated on separation, it seems that only the worst situations will parental responsibility be removed. In Re P the father had been convicted of assaulting the child so much so that it was close to death. Singer J. stated that parental responsibility would only be removed where there was strong and solid ground to do so. It would seem that parental responsibility is a difficult situation to lose let alone not gain but in West Ealing the father's application for parental responsibility was refused because his intention was to frustrate the council's plans to place the child, it was therefore seen not as using parental responsibility for the childs needs but for the parents grievences. Contrast with the case of the father in Re P it seems that where the child is to benefit or remains neutral then parental responsibility will be upheld but frustrating the primary carer will only sometimes be enough to withhold parental responsibility, especially if the carer is a local authority but not merely if just the mother, see Tyler-v-Tyler above.
It may be that a fathers' rights are aimed at protecting the unborn child's needs. In C-v-S the unmarried fathers application for an injunction to stop an abortion was dismissed, the mothers welfare prevailing. Clearly the bond between father and child is only established at birth, the foetus being the property of the mother. Once born the child can be seen as property, hence the notion that residence was part and parcel of the divorce proceedings. The father can play an important role when the mother is no longer able to care for the child. If it is right that children develop better in a family environment then a "back-up" parent is preferable to none at all.
Ther are times when fathers' rights will be disadvantagious to the child. It is clear that in the criminal law the children's needs, where they conflict with the fathers rights, will prevail. In DPP-v-Blake an interview in the presence of an estranged father was held inadmissible, the role of appropriate adult had not been fulfilled. In civil private law there seems a reluctance, save where the use of parental responsibility is motivated other than by the childs welfare, to admit any disadvantage. Whether the father can influence the primary carer seems judically confused. Lord Justice Glidewell in Re G suggested that the father should have been consulted in the question of the child's education, it being one of the major decisions in a childs life. This did not detract from the idea that the primary carer would remain responsible for the day to day running of the child's life. Indeed it would be almost impossible for an absent father to be consulted on ever decision and why should they. It may be that the father took no active role in the upbringing of the child when the parties were together. This seems to have been confirmed in Re P were Wilson J. said that a parental responsibility order did not give the father the right to interfere in the day to day decisions of the mother regarding the child.
Those involved with the welfare of the child will have their own ideas to stamp on families. A child's needs are often not heard unless they can prove Gillick competence. In Re S a twelve year old boy who wished to live with his father could not join proceedings because he did not appreciate the complexity of the seperation. In fact the courts seem often able to ride rough-shot over the wishes of the child, especially regarding medical treatment. A childs autonomy is minimal, they cannot force contact with the absent father, decide on their educational needs, chose which parent to live with, they only suggest a prefered outcome.
The conclusion therefore is that fathers have a range of options open to them from non-intervention to dual parenting. The later rare, the former most common. In contrast the childs needs seem to be somewhat evasive to defintion. If a child needs a stable two parent family then no judical decision is ever going to force the parents together infact Bainham concludes that the Children Act has done nothing to increase dual parenting. If it is the lesser contact with bioligical fathers then why is not more use made of "time-sharing" which Riley-vRiley so disapproved of, although J-vJ allowed albeit in exceptional circumstances. If it is simply that fathers should pay for their children then the father has no rights, either to call for termination or disown the child. You can divorce your wife but not your children.
Also Referenced;
Family Law, Hayes & Williams (1995) Butterworths.
Law and the Family, Dewer (1992) Butterworths.
Statutes on Family Law, Oldham (1995) Blackstone.
Children: The Modern Law, Bainham (1993) Family Law.