Determining who is a child’s legal father

‘By 2005, this (births born outside marriage) had increased to 43 percent. Most births

outside marriage were registered by both parents rather than only one parent, indicating

an increase in cohabitating parents. In 2005, 84 percent of births outside marriage in England

and Wales were jointly registered by both parents. Three in four of jointly registered births

were to parents living at the same address [3] .’

This figure might seem surprising when we consider the amount of children born outside of the conventional family-based unit, which is their parents are not married together. However, the relationship between the unmarried father and their children can differs from ignorance and indifference, to a close and stable relationship which could not be distinguishable from the conventional family-based unit. [4] 

What is a conventional family- based unit? The Supreme Court of the United States stated [5] that a traditional family is defined as:

“The concept of the traditional family, that is, the ‘natural reproductive unit’ of mom, pop, and the children all living under one roof, is not an immutable one.  It is a social construct that varies from culture to culture and, over time, the definition changes within a culture."

It is thought that the conventional family-based unit is a nuclear family group which the married couples, and their children living in the same household. The married couples would need to provide financial contributions and moral support to the family members and to grow together as one family unit.

However, there are some controversies regarding the status of an unmarried father. As the Law Commission Report 1979 explained [6] that the father of an illegitimate child probably poses a greater disadvantage than the child himself, as in today environment. For an example, an unmarried father in English law could not obtain parental responsibility automatically even if he is being the child’s natural parent [7] . He had no legal right to approve in different scenarios, such as to consent his child’s adoption, to his child leaving the UK; to change his child’s surname; or to a decision about his child’s education or medical treatment [8] .

Parental responsibility (PR) is a very important concept in the English family law. It is defined in the Children Act 1989 s.3(1) which stated that ‘all rights, duties, powers and responsibility and authorities which by law a parent of a child has in relation to the child and its property’. Therefore, the emphasis on the Act is on the responsibility of parenthood, and the most important factor is that the child’s welfare and his upbringing, is a paramount consideration to the court [9] . In order for an unmarried father to play full role in his child upbringing, he needs to acquire the parental responsibility. The fact that unmarried father could not obtain parental responsibility had stirred up much criticism as the options for unmarried father to acquire parental responsibility is limited, as it requires the consent of the mother or from the court. Before the reform, unmarried father could only acquire parental responsibility by marrying the mother (S.1 Legitimacy Act 1976) or by obtaining Residence Order under S. 8(1) of Children Act 1989. Another way is by obtaining order by court to acquire parental responsibility for the child. It is known that most fathers are unaware of this rights have stressed the government to reform. Furthermore, the court will take into account several factors mentioned by Balcombe LJ in the case of Re H (Minors) (Local Authority; Parental Rights) (No. 3)[1991] [10] . These factors are the degree of commitment shown by the father towards the child, the degree of attachment which existed between the father and the child, and the motive behind the application of PR by the father. However, the PR application might still be refused even if the unmarried father fulfills all the factors. Examples of the cases are Re M (Contact: Parental Responsibility) [2001] [11] where if the court to grant PR order to the unmarried father, it would place stress on the mother and sabotage her ability to take care of her handicapped child. Even though the unmarried father placed genuine interest and committed to the child, his application was still be refused. However, there are some cases which PR application should be refused such as in the case of Re H (Parental Responsibility)[1998] [12] , the unmarried father has previously harmed the child or in the case of M v M(Parental Responsibility)[1999] , the unmarried father is incapable of raising the children due to his personal injury [13] . Wilson J took the view that motivation factor should placed on the unmarried father to be a capable of reason [14] .

Now, the Children Act 1989 has been amended, as S.4(1)(a) has inserted by s.111 of the Adoption and Children Act 2002. These provisions came into force in December 2003, where the unmarried father jointly registers the child’s birth certificate, he will get PR automatically. This would mean that around 80% of unmarried father will get PR in future [15] . However, an unmarried father PR can be terminated by the court [16] . For an example, in Re P (Terminating Parental Responsibility)[1995] [17] , the child’s father had shown no commitment in upbringing the child and he was the culprit and partly responsible for the cause of severe-non accidental injury to the child. Lord Singer J terminated the father’s PR believing that the father might continue to repeat the mistake in future. However, he concluded that the termination of PR should not be used as weapon from the dissatisfied unmarried mother and only to terminate when there is a strong ground that the children’s welfare is being threatened [18] .

In Re M (A Minor) (Care Order: Threshold Conditions)[1994] [19] , no question raised regarding the married father’s PR even when he had murdered the child’s mother and witnessed by the child [20] . It could be argued that the position of an unmarried father is still being discriminated against. This reform has even shown preference to the married father comparing to the unmarried ones [21] . However, there are debates regarding the situation and the position of the children. John Ekelaar has even categorized these children into three groups, whom they have different kind of legal relationship with their parents [22] . First group would be marital children, the majority in the society. Second group would be the non-marital children with birth certificate registered with the father and thirdly, the children with birth certificate registered only with the mother and the father is not identified. Furthermore, Fortin has given an addition to the group, the children who born before this reform and the father had registered with the children will be treated the same as the third group which meant that these fathers do not have automatic parental responsibility towards the child.

In this scenario, debates and discussions have raised among the pressure groups such as the Families Need Fathers and UK Men’s Movement, they have concluded a clear opinion which favours the extending automatic P.R. to the unmarried fathers. It is thought that the other groups representing the interest of the women (Standing Conference of Women's Organisations, Women's National Commission), children (The Children's Society, National Society for the Prevention of Cruelty to Children) and society (National Family Trust) have both come into one view that further reform is needed in order to curb the uncertain rights of unmarried father towards their child [23] . Before looking at the reforms, it is important to take note on the views from European Courts of Human Rights, whether the rights of unmarried father has been breached under European Convention of Human Rights (ECHR). In the case of McMichael v United Kingdom (1995) [24] , the court held comparison between the unmarried and the married fathers, since the treatment towards their child are vary, some unmarried father have shown less interest, commitment and even knowledge regarding the welfare of the child [25] .However, for those unmarried fathers who had established a family life with their children, they are capable to claim custody and contact from the court as the right to respect for family life under Art.8 should not be violated [26] . This has imposed further obligation to the Member States, not only to resolve paternity disputes, but taking positive measures to promote family life in an efficient and accurate manner [27] .

It is important to struck a fair balance between the society and the interested parties. However, ECHR had reminded that their role is not to substitute the domestic legislation which is already adequate but to examine whether the Member States have taken the appropriate authority under the Convention correctly. In the case of B v UK [2000] [28] , the mother took the child to Italy without the unmarried father’s permission, the unmarried father applied for parental responsibility and sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction 1980, but it was rejected because he had no formal rights of custody and appropriate documentations. However, he tried to brought a complaint to the ECHR claiming that his rights were not protected comparing to the married father. The court held that his application could not be admitted simply because the responsibilities of a father who merely had right of contact with the child is not in equal footing with the fathers who bore parental responsibility. Therefore, it could be said that no discrimination between a married and unmarried fathers [29] . Furthermore, the unmarried father is clearly entitled to have respect of his family life, but the courts thought that there are numerous ways for him to acquire PR, as the options have been increased ever since, it is unlikely that the courts will favor the claims made by the unmarried father who claim that their rights have been violated under the Convention.

However, there are number of European cases where the Articles 8 rights are being violated especially in the issue of paternity claim. In Kroon v Netherlands [30] , the mother and natural father of the child came sought to seek for recognition of the paternity of their child but under the domestic law, married women could not deny the paternity of a child born in wedlock to another man [31] . Therefore, the natural father was required to wait and hope for the husband’s paternity successfully refused. The European Courts of Human Rights (ECtHR) recognised that sufficient family ties existed between the natural father and the children and the intention to create family life such as providing maintainence to the child’s welfare would further enhance the chance of getting the paternity recognised. However, the domestic authorities had suggested two alternatives that lead to a breach of the applicant’s Article 8 rights. First, step-parent adoption that forces both parties to marry. Secondly, joint custody, this would mean that the husband’s legal relationship with the child remains a stumbling block to the natural father. Therefore, a breach of Art 8 ‘Right to respect for private and family life’ had occurred.

The effect of these cases had highlighted the importance of ‘respect’ for family life under the Art.8 of European Convention of Human Rights (ECHR) and the development of domestic law. Art 8 stated that the ‘Right to respect for private and family life’, it is thought that the relationship between the applicant and the child is not only dependant on the existence of family life but private life of the applicant could also be used to claim for their rights. Debates and discussions from the public regarding these cases where paternity proceedings which are aimed at the breaking up existing family life, the court has left open to question of whether such proceedings concern the applicant’s family life or his private life [32] . However, given further reforms recommended by the government, it is highly unlikely that further challenges in this area will be productive as the current proposed reform is intact with the ECHR and this reform, and it is specifically to fill in the gap and remove the unfairness that aimed at the unmarried father’s rights to acquire PR towards their child.

Essentially, the government is in the process of introducing compulsory joint birth registration for unmarried fathers. These unmarried fathers will be jointly named on their child’s birth certificate with the mother and the purpose of this reform is to urge the unmarried fathers to be sensible and admit their responsibilities to their children and to contribute towards the progress or growth of the child. New provisions are contained in s.56 and Schedule 6 of the Welfare Reform Act 2009 and this act states that compulsory joint registration is required for both unmarried parents. However, there are few factors that lead to exceptions such as when it is impossible to trace the father’s identity, impractical to search for the father’s location, and the child is conceived by rape which considered unreasonable to grant PR to rapist father, or where joint registration would not be in the mother and/or the child’s best interests [33] . However, the new provisions are not yet in effect.

In Green Paper 2007, (Joint Birth Registration: Promoting Parental Responsibility CM7160, June 2007), a quote by Rt Hon John Hutton, the MP Secretary of State for Work and Pensions:

‘These reforms will play a crucial role in ensuring that more money reaches more children. But at a time when fewer people are making the decision to formalise their relationships through marriage, we believe we need to go further in promoting and supporting joint parental responsibility [34] .’

Studies have shown that the fathers who recognise the birth of their child from the beginning would probably be more responsible and remain in touch with their child even if the relationships with the mother collapsed. It is also a positive note that when the unmarried father has refused to pay for the child’s maintenance, the mother could conveniently claim the child maintenance as the unmarried father has jointly registered the birth certificate, he is obliged to pay for maintenance he owes. Therefore, it could be said that compulsory joint-registration would assist the mother to claim for child maintenance and also to reduce the burden bore by the mother alone. Ironically, married couples are granted automatic joint registration but unmarried parents would have to require both parties to consent especially in the mother’s position, whether to allow the father’s name appears on the birth certificate. Recently, Green Paper 2007 has suggested proposals to change this into compulsory joint registration with the purpose of maximizing the number of joint-registrations by proposing both legislative and non-legislative measures [35] .

A year later, White Paper 2008 [36] as in response to Green Paper, supported some recommendations and proposals ie. changes to the jurisdiction in England and Wales regarding compulsory joint birth registration to be legalised [37] . A legal requirement for all unmarried parents to register their name on the child’s birth certificate would mean that majority of the unmarried father could obtain PR as many have claimed that this is the right they lacked of. Moreover, non-legislative measures to encourage joint birth registration and ultimately, given a right to the mother to take a firm stand and assert that the natural father knows his responsibilities to his child by registering on the birth certificate. Equally, it gives the unmarried father a new right that would clear the social ‘evils thoughts’ towards an unmarried man being ignorance and irresponsible to the mother and welfare of the child.

The growth of a child is heavily influenced by the father and mother. Essentially, crucial matters such as child’s name, medical decisions, education and religion of the child could be decided without any delay. Unmarried fathers might feel that they are not being isolated in upbringing the child, as they could participate and learn to acquire the skills of parenting without restrictions. Unfortunately, even though the acts have already been amended and new provisions are laid down in s.54 and Schedule 6 to the Welfare Reform Act 2009, they are not currently in force. As a result, unmarried fathers still do not automatically hold parental rights and it was still being regarded as a stumbling block for the fathers who hold genuine interest and intention to create family life with his child. Undoubtedly, fathers’ participation in the upbringing of the child, especially during childhood could probably hold higher chances of positive foundation in the child’s educational achievement [38] , it is also crucial for parents in guiding and giving advice during the teenage years as rebellious phase normally occurs in adolescence period.

Arguably, unmarried fathers should be given a platform to show his intention to build a family life under S.8 of ECHR (Right to respect family and private life). In addition, relationship with the mother should not be the main issue but the child’s welfare shall be the paramount consideration. In White Paper, the Secretary of State for Work and Pensions acknowledged that joint birth registration will not influence the decisions made by the fathers who do not have determination or capability to be a contributor of the child’s life. Some fathers even argued that they have involved in another relationship or marriage with another woman, therefore unwillingly, interfere the life of the mother and the child. However, the effort in encouraging joint birth registration will boost a wider cultural shift so that more fathers see their child as their responsibility [39] .

On the other hand, it is important to take note from the woman’s position. Julie Wallbank has indicated that women should have the power to decide the status of the unmarried father as the mothers are normally being presumed that they bear more responsibility for the child than the father. Therefore, her view on those who supported giving automatic parental responsibility to all fathers are relying on ‘ethic of justice’ which stressed on formal equality and general rules rather than ‘the ethic of care’ which emphasized on the significance of responsibilities and emotional relationships [40] . She says that White Paper encourages father and child involvement but need to accept the fact that granting birth registration to the unmarried father does not necessary mean that the father will be responsible in parenting.

It is thought that fear of misuse by the unmarried fathers would remain a concern from feminine point of view. Some argue that these fathers might misuse the PR and use it as a ‘weapon’ to threaten the mother. More worried situations might happen when the father uses legal jurisdiction as an excuse to abduct the child to other countries. Opponent of such views that these kind of fathers would eventually do so whether or not he has acquired parental responsibility [41] . However, an unmarried father is liable to pay child support under Child Support Act 1991, it could be argued that these efforts made by the fathers who willingly pay for the child support and maintenance should at least been recognised. Furthermore, the question of fairness would arise when the unmarried fathers suffer the burden but not gain the benefits that married fathers possessed [42] . Finally, one of the strongest controversies in this reform would be uncertainty. On outset, it is easy to prove whether a man has PR towards his child as relevant documents could be supplied at ease [43] . The consequences could be severe when unmarried fathers claimed the paternity wrongly. Unless blood test are being examined, it seems ridiculous to allow the unmarried father to acquire PR without going through any biological tests which could confirm the relationships without s single doubt.

In conclusion, issues such as morality, justice, fairness and society wellbeing shall be considered. Since B v UK [44] , the UK government has started to acknowledge importance role of an unmarried father in the society. From Green Paper 2007 to White Paper 2008, to the new provisions, the government’s bold move to reform might cause controversial debates since unmarried fathers are always being presumed as bad apples in society. However, development of society is crucial. As time changes, people need to accept the fact that the percentage of conventional family unit are not as high as in the 70’s and 80’s. Divorce rates have been increasing ever since, the court would need to adapt the changes alongside with this issue. Therefore, it is likely that the act will come into effect very soon, unmarried fathers could automatically hold PR without any restriction, however they should bear in mind that their PR could be terminated as B v UK had held that an unmarried father does not hold equal footing with the married father when disputes arose.

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