‘Defining the parents and the responsibility of the child

However, it was held that there was no discrimination of Article 14 and Article 8 as there are an ‘...objective and reasonable justification for the difference in treatment between married and unmarried fathers’ with regard to the automatic acquisition of parental rights.

In the opinion of Beevers [3] , the outcome of B v United Kingdom might have been different if the father has longer contact with the child. This has led to the question of whether or not unmarried father has been discriminated against compared to married father and unmarried mother and should all unmarried father get automatic parental responsibility.

First of all, it is important to establish who the parents of the child are. In the conventional family-based unit, it is usually consisted of one mother, one father and children.

Section 33 of the Human Fertilisation and Embryology Act 2008 stated that mother of a child is the woman who gives birth to the child even if she is carrying an embryo using a donated egg. This includes the case of where a surrogacy woman who gives birth to the child is the mother.

While to be a father of the child, the father must show he is biologically connected with the child. The legal presumptions of paternity applied and have not rebutted by virtue of one the statutory provisions governing assisted production. The presumption would be if the father is married to the mother of the child at the time of the birth or if the father is registered in the child’s birth certificate. According to Standley, [4] this presumption has little relevance as parentage can be established with certainty by DNA test.

After determining who are the parents, then next question would be the definition of parental responsibility that is contained in section 3 of the Children Act 1989 which stated ‘...all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. This does not affect the statutory duty to maintain a child by virtue of section 4 of the Children Act 1989.

As Standley stated, [5] parental responsibility is most likely to be associated with the providing of financial, food and clothing or making important decisions for the children. However, parent without parental responsibility can have legal rights and obligations. Consent from all parties who has parental responsibilities will be required before making some major decisions such as removing the child from jurisdiction of United Kingdom, consenting on adoption, education, surname and medical treatment.

While according to Herring, [6] the definition of parental responsibility is uncertain and the lists are therefore not exhaustive. The definition is decided on case to case basis and depending on the welfare of the child in the case.

Parental responsibility is also for life and continues after divorce, dissolution of civil partnership, or if parents separate. But it terminates after the child reaching adult age, adoption or by court order. [7] 

After determining who the parents of the child are, next question would be who has parental responsibility. Under section 2(1) of Children Act 1989, a married father and mother will have automatic parental responsibility.

Under Section 2(2) of the Children Act 1989 where in the case where the father and mother of the child were not married, the mother will have automatic parental responsibility but the father will have the parental responsibility only if he acquired it through Section 4 of Children Act 1989.

Section 2(6) of the Children Act 1989 also stated that that ‘a person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child’ due to the complexity of civil partnership and assisted reproduction.

Section 2(7) of the Children Act 1989 also allowed people with parental responsibility to act independently. This statutory provision allows mothers to make a decision for the child alone without notifying the father. Therefore unmarried father will have great disadvantage compared to the married father as they do not have automatic parental responsibility.

Unmarried fathers do not have parental responsibility automatically but can acquire it under section 4(1) of Children Act 1989 as amended by section 111 of Adoption and Children 2002. He can acquire it by registered as the child’s father in the birth certificate, [8] make an agreement with the mother [9] or by applying for a parental responsibility order. [10] Not only that, unmarried father can also acquired parental responsibility through residence order, [11] through adoption order, [12] being appointed guardian [13] or marrying the mother. [14] However, unmarried that acquired parental responsibility through section 4(1) [15] can be revoked by court orders, [16] In revocation of father parental responsibility, the welfare of the child is the court paramount consideration. Beside that, unmarried father can also acquired parental responsibility through residence order, [17] through adoption order [18] or being appointed as guardian [19] or by marrying the mother. [20] 

In the case of Re P (Terminating Parental Responsibility), [21] the parental responsibility of unmarried father was revoked but Singer J held that this should only happen when there was a ‘strong grounds’ to do so. But in the case of Re M (A Minor) (Care Order: Threshold Conditions) [22] where the married father murdered the mother but still get parental responsibility. Therefore in this sense, unmarried father is still discriminated against compared to married fathers.

Re H (Minors) (Local Authority: Parental Rights) (No3) [23] laid down the starting factors to be considered when an unmarried father applied for section 4 application. There must be a degree of commitment shown toward the child, the degree of attachment between the father and the child and the motive of the father for applying the order. However, welfare of the child is the court paramount consideration. [24] This was confirmed in Re CB (A Minor) (Parental Responsibility Order) [25] and Re G (A Minor) (Parental Responsibility Order). [26] This could show that the court is willing to grant parental responsibility to unmarried father if they showed commitment to the child but will only terminate parental responsibility when it adversely affected the welfare of the child.

However, the parental responsibility can be refused in some cases such as In Re H (Parental Responsibility) [27] where the abusive father was not granted parental responsibility. In the case of Re M (Contact: Parental Responsibility) [28] , the father showing concerns for the disabled child but it was held that there was a potential misuse of parental responsibility and therefore was not granted the parental responsibility order. In the case of Re P (Parental Responsibility) [29] , the parental responsibility was not granted because there was a likelihood that the parental responsibility order might be abused.

There was a proposal for change by government with includes all biological parents to have parental responsibility and extension of automatic parental responsibility to all unmarried fathers as stated by Sharp. [30] There is also proposal that mother should have power to reverse the parental responsibility of unmarried father.

At present, the law in England and Wales is that no unmarried fathers could be given parental responsibility automatically, but there are reforms made to help unmarried father to acquire parental responsibility.

One of the notably reform made was the amendment of section 4 of Children Act 1989. The Adoption and Children Act 2002 amends the section 4 so that registered father can get parental responsibility. This allow unmarried father to get parental responsibility more easily if the unmarried father was registered in the birth certificate with the mother. However, it should be noted that this could only happen when the mother is in a good term with the unmarried father. Therefore it could be said that consent of mothers were given much more weight then the fathers.

Section 56 and Schedule 6 of the Welfare Reform Act 2009 also makes it compulsory for both unmarried parents to register the child’s birth. This proposal was set up in the White Paper [31] . One the aim of this proposal was to give right to the child to know their parent. This again is able to promote involvement of both unmarried parents in the upbringing of the child and this will promote healthy relationship between the unmarried father and the child. [32] However, this may also caused some unmarried father not to register as to avoid financial burden or emotional support from the mother. [33] Bainham also argued that this reform was suppose to promote welfare of the child and the parent but it always has been about the recording of facts such as the birth and parentage of the child. [34] As this proposal is currently not in force, it should take a few years after implementation to see whether this has helped unmarried father to gain parental responsibility.

Therefore, unmarried father therefore will have no parental responsibility when they refused to be registered in the birth certificate of the child. Many unmarried fathers do not know that they lack parental responsibility as they assumed they had parental responsibility if they care and have contact for the child or cohabit with the mother. [35] This has led to the debate of whether all fathers should acquire parental responsibility automatically. One of the argument against all unmarried fathers acquired parental responsibility automatic is said to cause a decline in marriage as more unmarried father chose to cohabit. According to Conway [36] , many of the unmarried fathers did not care about their legal position regarding the parental responsibility until there was dispute or mistakenly believed that they have the same rights as the married father when they cohabit with the mother. More surveys or journals should be published to increase the awareness of the unmarried father about the effect parental responsibility. This may be able to increase more unmarried father to get married, register or apply for parental responsibility order.

The lack of parental responsibility also cause problem to the unmarried father when the mother removed the child from the jurisdiction of United Kingdom. Not only that, this also affect the decision made in medical condition and other decisions such as education and religion. This could affect the welfare of the child when the mother solely made the major decisions in the child life and the father has no say or power whatsoever to stop the mother. This again could seem as a discrimination to unmarried fathers. However, unmarried father who had continuous contact and more involved with the children should be allow to claim rights of contact or custody equal to those of married fathers.

Another argument of discrimination is that unmarried fathers are liable to pay child support under the Child Support Act 1991 but are not automatically awarded parent responsibility. Some argued that it is not fair to have such disadvantage of paying child support but not getting any parental responsibility from it. However, it was argued that since the father was not willing to marry the mother therefore it is fair to impose financial duty on the unmarried father. [37] It is always in the best interest of the child to be financially supported by both parent but it may not be true when both parents have parental responsibility to make decision on behalf of the child especially when a parent does not know the child well. However, in PM v United Kingdom [38] , the court was willing to recognise the unmarried father had the same status as a married father with regard to the tax deduction of maintenance payment.

Some commentator such as Herring [39] even argued that it is easier for unmarried father to acquire parental responsibility after the introduction of the section 4 Children Act 1989 and there is legal aid available. Therefore it is a waste of public resources and should allow all unmarried father to have parental responsibility automatically. However, if the court were to give all unmarried father parental responsibility automatically, this may led to increasing workload on courts as more and more unmarried fathers will go to court when there is disputes of the decision made by mothers.

In B v United Kingdom, [40] one of the issues is the removal of the child from the jurisdiction. Although the court held that there was no discrimination between the treatment of the unmarried father and married father, there seemed to be a problem for an unmarried to stop the mother from removing the child from the jurisdiction of United kingdom due to lack of parental responsibilities. Maidment [41] stated that the granting of parental responsibility can allow the ‘right of veto’ but in the case of Re V-B (Minors) (Abduction: Custody Rights), [42] it was that the unmarried father only had the right to be informed and consulted. Therefore It was argued that the by granting parental responsibility on unmarried father automatically can allow them to stop the mother from removing the child from the jurisdiction without consent. Unmarried father, however, can apply to section 8 Children Act 1989 in order to stop mother from removing the child from United Kingdom.

Unmarried father is not given automatic parental responsibility because it was argues that it can be detrimental to some unmarried mothers and child. For example, in the case Re H (Illegitimate Child: Father: Parental Rights) (No2), [43] Balcombe LJ stated that “...single act of intercourse or (possibly even rape)" can led to the birth of the child and therefore it is unfair to give parental responsibility to the rapist father. In a theoretical case of a husband rape a wife and ended having a child. The husband is mostly to be granted parental responsibility as he is married to the mother of the child. However, in the case of unmarried father, he will not get a parental responsibility but this was not thoroughly discussed. Therefore, if all unmarried father were to get parental responsibility automatically, in this case, by putting a burden of proof on victim of rape to persuade court to remove parental responsibility of rapist father is inappropriate.

There is also argument on the balance of power between mother and father. Eekelaar [44] also stated that father can carry out duties of a parent such as feeding and clothing the child without parental responsibilities. Therefore, when the need for parental responsibility arises on making decisions with regard to the child in the area such as medical and education, the consent of mother will be enough. Some commentator also argued that the father will only need the parental responsibility when he wants to oppose against the mother decision. This will be different if the father were married as they can stop the mother from making such decision without consulting with the father. An unmarried father that is involved with the upbringing of the child is suggested to has some power in making decisions with mother but an unmarried that had limited or no contact with the child is definitely has no power to oppose the mother’s wishes. It is also argued that due to primary caring of the child is undertaken by the mother thus the mother should know the child well enough. Therefore their view on whether the father can acquire parental responsibility should be given priority.

Due to the lack of parental responsibility by unmarried father, there can be discrimination when compared to married when it comes to cases of adoption. However the court had two different judgements with regard to this area. In the case of Re H; Re G (Adoption: Consultation of Unmarried Father), [45] two contrasting decisions were made where in the first case the authority were to told to consult the unmarried before the adoption but in the second case the authority were told not do anything about the unmarried father. It is better to give parental responsibility to unmarried father that are involved in the care of the child rather than giving parental responsibility to those married father that did not care for their child. However, it will be up to the court to decide case to case basis and to focus on the welfare of the child.

There is also an argument stated that present law create certainty in the area of parental responsibility. This could help distinguish easily whether a man has parental responsibility or not. The father can show the documents such as birth certificate, certificate of marriage, parental responsibility order or agreement to prove that the father has parental responsibility. If all fathers were to get parental responsibility, there will be no certainty as to whether the father is indeed the father of the child unless the paternity test was done. It is important to have father with parental responsibility to make decision with regard to the medical treatment of the child. [46] 

In Gilmore, [47] the parental responsibility order has been giving status of fatherhood on the biological father as if he has married the mother and therefore the condition to make the order was kept low. By giving the father that are greatly involved the upbringing of the child ‘a stamp of approval’ [48] can be beneficial for the welfare of the child. This can led the child to grow up knowing that their father was committed enough to have parental responsibility imposed on them.. As for the development of the parental responsibility, Reece [49] also stated that the granting of parental responsibility is now more to do with emotion and feelings rather than decision-making power. This was shown in the case of Re H (A Child: Parental Responsibility) [50] where it was hoped that there will benefit for the child to know she has two parents. Another recent case would be Re D (contact and parental responsibility: lesbian mothers and know father) [51] where judgement was held based on emotion and feeling of the child toward the father. This show that the court is somehow realised that having a father figure in a child life can affect the self-esteem and development of the child. Thus, the feeling of the child of having a father figure may seem to be a reasonable justification for granting parental responsibility automatically to unmarried fathers.

In conclusion, the amendment of section 111 of the Adoption and Children Act 2002 will allow unmarried father to acquire parental responsibility more easily if the father is registered in the birth certificate of the child. The courts as stated by argument above also showed a willingness to grant parental responsibility to worthy unmarried father. By granting unmarried father automatic parental responsibility, this could served as a protection for the unmarried father to prevent the mother from making decision that prevent involvement of the father in the upbringing of the child. For example, the removal of the child from jurisdiction of United Kingdom can be prevented if the unmarried father has parental responsibility. However, the area with regard to granting of parental responsibility automatically to unworthy fathers should be explored and reformed. This reform could include enactment of statutory provision to grant parental responsibility to unmarried father that cohabitate with the mother. As Gilmores stated, most of the commentators do support a reform in law to enable all fathers to acquire parental responsibility automatically as this will allow unmarried father to have an equal rights with the married father.