Zita had sexual intercourse with Dan on one occasion. Later, she decides that, since he behaved very badly towards her, she wants nothing more to do with him. She then discovers that she is pregnant and believes that Dan is most likely the father. She is so horrified at the thought that he might want to be involved with her baby’s upbringing that she gets a job in another city.
However, a year later, Dan hears the news that Zita has had a baby, Anna. He assumes he is the father. He decides he wants that fact to be known and wants to have a say in Anna’s upbringing. Advise Dan on the law and procedures available to him in relation to his desire for a parental role. Also include in the answer, an assessment of his prospects of success and the practical effect of any orders he may gain.
Family Law Reform Act 1969
The first issue that must be considered before any other is the issue of proving that Dan is in fact the father of Annie. The court has a discretion to direct blood testing under the Family Law Reform Act 1969 section 20. The court may exercise this power either of its own motion or on an application to the party in the proceedings. Such jurisdiction only arises where there are civil proceedings before the court in which paternity of a child is in issue . Therefore this discretion can only be exercised in the course of the applications that are discussed in more detail below.
Guidance on the discretion to direct blood testing was given by the House of Lords in Sv S; W v Official Solicitor. The House of Lords made it clear that the paramountcy of the child’s welfare is not the governing principle, rather, the principle is:
“The Court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of other persons other than the infant are involved in ordinary litigation. The infant needs protection but that is no jurisdiction for making his rights superior to those of others”
Their Lordships ruled that where there is, or may be, a conflict between the interests of the child and the general requirements of justice, justice requires that available evidence should not be suppressed. It would seem from the most recent case law that the courts will refuse to direct a blood test only in those cases where the facts are exceptional . In this case the court reiterated that the child’s welfare was not the dominant issue, and that whilst the outcome of any proceedings for parental responsibility and contact were obviously factors which would impinge on the child’s welfare, there were not determinative of the blood testing question. Furthermore, the court stated that that the child has a right to know who his parents are “unless his welfare clearly justifies the cover up, and drew an analogy between the need for a child to know the truth about his origins with the call for greater openness in adoption. Therefore on this analysis it is likely that blood tests would be ordered and that Dan would therefore be able to demonstrate that he is Annie’s father.
It should next be noted that as Zita and Dan are unmarried and therefore Dan will have no parental responsibility as of right. In a sense English law still upholds a distinction between fathers whose children have been born in lawful wedlock from those whose children have not. Like all mothers, married fathers automatically have parental responsibility for the child from the moment of birth whereas unmarried fathers did not . Section 2(2) of the Children Act 1989 provides that:
“Where a child’s mother and father were not married to each other at the time of his birth-
(a) the mother shall have parental responsibility for the child;
(b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of he Act”
As there is no agreement between Zita and Dan, Dan is entitled to apply for a parental responsibility order. The court must consider an application for parental responsibility independently of any other application before the court , and must first ‘consider whether the applicant is the father of the child, because there is no jurisdiction to make an order in favour of anyone who is not the father ‘. The Court of Appeal has suggested that where the facts disclose an issue as to the child’s paternity, jurisdiction ought not to be founded on a concession that the applicant is the child’s father. This is because it is doubtful that the concession would be binding on anyone other than the parties and the child . It may be necessary, however, to reconcile that view with earlier Court of Appeal authority. This suggested that where the parties agree as to the child’s paternity that consensus should be fostered not jeopardised; thus unless the consensus is manifestly contrary to the child’s welfare, it is better for a judge to proceed on the hypothesis that the applicant is the father, rather than investigate the matter.
There is no specific guidance in section 4 on how the court should determine whether to confer parental responsibility, and the court is not required to apply the checklist in section 1 (3) which identifies those matters to which a court must have regard when deciding what court of action will best promote a child’s welfare. However, who should have parental responsibility is undoubtedly a question with respect to the upbringing of a child, and the child’s welfare is therefore the court’s paramount consideration in determining the issue. Those who have parental responsibility have an advantage when decisions are made about a child’s future as they are entitled to be consulted.
In Re C and V (Contact and Parental Responsibility) the Court of Appeal reminded the lower courts of the discrete nature of a parental responsibility order which is designed to do no more than confer on the natural father the same legal status of fatherhood which a father has when married to the mother. Ward LJ explained why normally it is in the best interests of a child that a parental responsibility order is made:
“A child needs for its self-esteem to grow up, wherever it can, having a favourable positive image of an absent parent; and it is important that, wherever possible, the law should confer on a concerned father that stamp of approval because he has shown himself willing an anxious to pick up the responsibility of fatherhood and not to deny or avoid it. ”
The Parental Responsibility Order is ‘the subject of a discretion cast in the widest terms, without any statutory rubric being added as to the basis of its exercise ‘. The introduction of the parental rights and duties order was, as Waite J explained in Re CB (A Minor) (Parental Responsibility Order), ‘an instance of parliamentary willingness to allow the courts to develop their own criteria’, and the courts soon obliged. In Re H (Minors) (Local Authority: Parental Rights) (No 3) the Court of Appeal, delivering what has become the leading decision in this area, said:
‘In considering whether to make an order under s 4 of the 1987 Act, the court will have to take into account a number of factors of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):
(1) the degree of commitment which the father has shown towards the child; (2) the degree of attachment which exists between the father and the child; and (3) the reasons of the father for applying for the order.’ (Hereafter referred to as the Re H criteria)
Commitment can take a variety of forms, and need not be demonstrated in day-to-day care of the child. Indeed, where the parents’ relationship is acrimonious, the father’s most responsible and committed response might be to withdraw on that level. In such circumstances, commitment might be evidenced by regular contact , persistence in making applications to the court , or the payment of maintenance, although the court will not ‘use the weapon of withholding a parental responsibility order for the purpose of exacting from the father what may be regarded as his financial dues ‘. Attachment is regarded as a two-way process. With regard to the third of the Re H criteria, it has been pointed out that the father may have no particular reason for applying other than the desire to have parental responsibility for his child, and so the absence of specific reasons is no bar to the grant of an order; this criterion is essentially concerned with identifying the father whose motives for wanting parental responsibility are improper. Therefore it is likely in such circumstances that Dan will be awarded parental responsibility.
Under Section 8 of The Children Act 1989, Dan could apply for a residence order and or a contact order, as the conditions for leave to apply are very similar these two orders will be dealt with together.
A residence order means:
“…an order settling the arrangements to be made as to the person with whom a child is to live”
Where a court makes a residence order in favour of the father it must also make an order giving him parental responsibility .
A contact order means:
“…an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other”
A section 8 order can be made when someone makes a free-standing application for an order under section 10(2) as will be the case here. A court in free standing or family proceedings have power to make a section 8 order of its “own motion.” This means that where the court takes the view that a section 8 order would be in the child’s best interests then it can make such an order even though no application for an order has been made.
Section 10(4) provides:
“The following persons are entitled to apply to the court for any section 8 order with respect to a child-
(a) any parent or guardian of the child
(b) any person in whose favour a residence order is in force with respect to the child
This is further qualified by section 10(5) which identifies a privileged group of persons who are entitled to apply for a residence or contact order:
“The following persons are entitled to apply for residence or contact order with respect to a child –
(a) any party to a marriage in relation to whom a child is a child of the family
(b) any person with whom the child has lived for a period of at least three years;
Therefore Dan will not be entitled to apply for a residence or contact order as he has not lived with the children for a period that exceeds three years. It is possible for a shared residence order also to be considered and although it was once felt that such orders would only be appropriate in circumstances where the parents were on amicable terms – this is now not thought to be the case. In A v A the relationship between the parents was described by Wall LJ as being ‘a virtual state of war’ (para ). The fact that the parents were not able to co-operate was not a reason to refuse to make a shared residence order – on the contrary it was exactly why a shared residence order was necessary. As Wall LJ observed at para :’If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have followed Mrs P’s advice and made no order as to residence … Here, the parents are not, alas, capable of working in harmony. There must accordingly, be an order. That order, in my judgment, requires the court not only to reflect the reality that the children are dividing their time equally between their parents, but also to reflect the fact that the parents are equal in the eyes of the law, and have equal duties and responsibilities towards their children .’
So in conclusion it is likely that the following orders will be made. It is likely that in the course of the proceedings the judge will exercise his discretion to order blood tests so that the parentage of Ann can be proved. Secondly, on this basis it is likely that Dan will be successful in his application for parental responsibility. The final issue will be whether he will be awarded a contact or residence order, it is unlikely that a residence or shared residence order will be considered by the court at this time. It is likely that they will make a contact order, but a residence order would be incorrect considering that the Ann has never before spent time with her father. The court may consider such an order much later on, but for the moment it is concluded that Dan will succeed in his parental responsibility order and contact order only.
- A v A (Shared Residence)  EWHC 142 (Fam),  1 FLR 1195
- Re C and V (Contact and Parental Responsibility)  1 FLR 392Re CB (A Minor) (Parental Responsibility Order)  1 FLR 920
- Re D (Parental Responsibility: IVF Baby)  Ewca Civ 230
- Re E (A Minor) (Parental Responsibility)  2 FCR 709
- Re G (A Minor) (Parental Responsibility Order)  1 FLR 504;
- Re H (Parental Responsibility: Maintenance)  1 FLR 867
- Re H (Minors) (Local Authority: Parental Rights) (No 3)  FAM 151
- Re H (A Child: Parental Responsibility)  Ewca Civ 542, (Unreported) 15 April 2002
- Re H (Paternity: Blood Test)  2 FLR 65
- Re J (Parental Responsibility)  1 FLR 784
- Re M (Contact: Family Assistance: Mckenzie Friend)  1 FLR 75
- R V Secretary Of State For Social Security Ex Parte W  2 FLR 604
- Children Act 1989
- Family Law Reform Act 1969
- Arnot L, (2005) “Shared Parenting- The Clear Message from R v G”, Family Law Journal 35 (718)
- Blauwhoff R, (2005) “Motherless Paternity Tests and Minors in Europe”, International Family Law Journal (146)
- Gilmore S, (2003) “Parental Responsibility and the Unmarried Father – A New Dimension to the Debate” Child and Family Law Quarterly 15.1 (21)
- Barton C, (2005) “Family Law”, Fourth Edition, Oxford University Press
- Douglas G, (2004) “An Introduction to Family Law”, Second Edition, Oxford University Press
- Hayes M & Williams C, (2004) “Family Law: Principles Policy and Practice”, Second Edition, Butterworths
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