Abstract
This essay analyses the message being conveyed to unmarried fathers with regards to the very debatable legal system based upon the family legal system in the U.K. The current system is said to be creating a larger distinction between the legitimate and illegitimate child in terms of gaining parental rights for the father as contrasted to the unmarried father. After the implementation of the act in December 20031, married fathers have risen to the status as the mother; where she receives an innate right to parental responsibility. This statement is claimed based upon the genital argument for mothers that imply that “the pain and effort a mother goes through childbirth justifies the status of motherhood”, it establishes the mother’s commitment to the child2. However, whilst there has been established procedures3 that if satisfied, may grant unmarried fathers parental responsibility, the courts have also been given power to have it removed if deemed necessary4. All these are said to be burdensome to the unmarried father, thus lowering their morality to obtain parental right. My essay will then weigh the factors seeming to deter unmarried fathers and the moral implications if automatic parental rights are granted. I will also discuss how the applicability of the welfare principle may affect judgement in courts.
Introduction
To many, the term ‘parent’ is most feasible to be understood based on its genetic origins; an approach we can deem as to be the traditional approach. This means that a parent is the mother or father who nurtures and raises the child, the genetic presumption that they have borne the child. Yet, this simple definition is not applicable to all families considering the modern aspects of ‘family life’ at present. Law-makers from before would not have predicted the current dynamics to family life with regards to the increase of ‘step-parents’ in families now. The law can constitute a step – parent to be the ‘social parent’ of a child even if there is no biological or genetic parentage. It is for such reasons that the law has a variety of understandings on being a parent. In Re G (Children), Barroness Hale has outlined different aspects of parenthood, distinguishing 3 key elements5 that is, ‘legal parenthood’ would be titles granted to parents who is deemed in the eyes of the law as a parent, ‘ genetic parenthood’, referring to ones whose sperm or eggs has led to the creation of the child, and lastly the ‘social parent’ whose role is to carry out the day-to-day care for the child. Bainham has also successfully explained that the law distinguishes between parentage, parenthood and parental responsibility.6 Essentially, parentage flows from the genetic link between an adult and a child, parenthood refers to the legal status of being a parent and finally parental responsibility is defined as the rights and duties of being a parent.
In section 3 (1) of the Children’s Act 1989, parental responsibility refers to “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” 7 This right to parental responsibility not only includes the day-to-day provisions a parent must offer a child but also encompasses wider aspects such as education, health and religion. The Family Law Act allows for a default position of each parent having parental responsibility unless otherwise ordered by the court. However, this cannot be said for the position of the ‘unmarried father’. Currently, it is only the birth mother and the father who was married to the mother at the time who will be able to gain automatic parental responsibility. This issue has sparked much debate, saying that this infringes : “gender bias, discrimination on the basis of child’s birth status as well as a discrimination on the basis of the parent’s marital status.”
This dissertation will focus mainly on the message that is being conveyed to the fathers in light of the current law and the current amendments being made to change the law, essentially establishing whether the current law can be deemed satisfactory for fathers to access parental rights. I will also be addressing other issues to suggest what can be done to modify the law. Some have suggested granting fathers automatic rights and responsibilities on proof of their paternity. However, this has raised a number of issues particularly by those who are concerned by the fact that parental responsibility may be abused here, in ways that will jeopardize both the welfare of the child and the mother. Therefore, in response to that, a recent White Paper in England and Wales has posited a suggestion to make ‘joint birth registration’ a legal requirement for all unmarried parents unless a registrar considers it to be ‘impossible, impracticable or unreasonable’. The Government believes that the joint birth registration will play a vital role in “ developing a culture in which the welfare of the child is paramount and people are clear that fatherhood, as well as motherhood, always comes with both rights and responsibilities.” In support of this suggestion, people have claimed it on the basis : “a desire to promote child welfare and a right of the child to know who his parents are.” Nevertheless, some argue that if joint parenthood was made compulsory, those who registered the birth of their child would have immediate parental responsibility; similarly, and idea akin to the idea of granting fathers immediate parental responsibility. It is also vital to note that men who have become victims of their own biology have almost no say in such a matter. Instead, women who have the innate rights to their child will ultimately have the final say in determining the father’s rights and responsibilities. Hence, a series of considerations such as the ‘rigid’ application of the Re H criteria, the anomalies and inconsistencies in the context of ‘parental responsibility’, the welfare of the child and the mother’ will be taken into account in analyzing the main focus of this dissertation.
Setting the context of the debate
With response to the ever-developing society nowadays, the law has developed in such a way to cause a re-examination of the concept of parenthood. This is first based on the increased levels of technology. The introduction of new reproductive technologies has now enabled parents who are not genetically related to the child to be the parent of the child. Research has indicated that in the year 2014, technology was approved in enabling a child to be born genetically related to 3 or more people.
Secondly, there also seems to be an increase in the number of cases of children being born outside wedlock. This could be said to the growth of individualism where people now allow personal development to become central to their lives. Throughout Europe, there has been a dramatic increase in said cases, from 6% of all births in 1970 increasing to a 28% in the year 2000, during which the UK specifically experienced a similar increase that is from 8% to 40%. In other words, we are ascending to a time where people no longer feel that there are social expectations on how relationships should develop. This directly links into the role of women in society today. Over time, the world has experienced a seismic change in public attitudes towards women. Women now have the rights to own and control their own property thanks to the Married Women Property’s Act of 1882. Societal views no longer permit the idea of women being tied down by marriage. In turn, this results in numerous cases where children are born without the legal representation of the ‘unmarried father’ bringing us to our question today. Instead, he will have to make efforts to acquire ‘parental responsibility’ following the procedures as stated in the law.
Thirdly, because of our developed technology, there has also been an increase in the issue of child psychology among lawyers. In this sense, Ives claims that the term ‘father’ now has different meanings and that we simply need to be clear – using appropriate prefixes (i.e. causal/progenitor, material, moral) to specify which meaning we are referring to. In this, he defines the causal father to be the man responsible for bringing the child into existence. The material father then would be the man who provides materially for the child while the moral father would be the individual who forms a loving, parental relationship with the child. These different interpretations of the father consequently have an indirect impact on the jurisdiction of the courts in granting unmarried fathers parental rights.
As such, these factors demonstrate how modernization has indirectly affected the jurisdiction in the courts on granting unmarried fathers parental rights further adding discussion to the debate.
Current legal framework
As the law currently stands, there is no automatic presumption for parental responsibility for the position of the ‘unmarried father’. Instead they must acquire parental responsibility order (PRO) through Section 4 of the Children Act 1989. An orthodox view would suggest that PRO is subjected to all of the statutory objectives within Section 1 of the Children Act 1989. Within the confines of these criteria, the PRO is ‘the subject of a discretion cast in its widest terms, without any statutory rubric being added as to the basis of it exercise’. The law, in itself, being so easily open to interpretation has sparked much debate. In fact, Waite J himself explained in Re CB (A Minor) (Parental Responsibility Order) that the initiation of the parental rights and duties order was ‘…an instance of parliamentary willingness to allow the courts to develop their own criteria…’. This then brought forth what could be called the famous Re H criteria in which the Court of Appeal now use to deliver what has become the ‘leading decision’ in this area of family law. In the case of Re H (Minors) (Local Authority : Parental Rights) (No.3) , the court will have to take in to account (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. It has to be the Re H criteria represents the ‘most material considerations’, serving as the basis for considering PRO on the unmarried father’s part.