Shared Parenting Information Group (SPIG) UK

- promoting responsible shared parenting after separation and divorce -

Parental Responsibility - ending discrimination and including unmarried fathers

Submission of Shared Parenting Information Group to Lord Chancellor's Department consultation exercise - Procedures for The Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers. This submission relates to Part 2 of the Consultation Paper; Parental Responsibility for Unmarried Fathers.

Contents

1) About SPIG (Shared Parenting Information Group)
2) Parental Responsibility - The Current Situation
3) Why the current situation should be changed
a) Numbers of births outside marriage.
b) Low numbers of PR Agreements and PR Orders
c) Conduct, fitness and marital status
d) Practical and symbolic importance of parental responsibility e) Interface with Child Support Act
f) Exclusion
4) Our Proposals for Change
a) Automatic Parental Responsibility
b) The mother's veto
c) Gender equality
d) A wider strategy of inclusion
5) Conclusion
6) Bibliography

1) About SPIG (Shared Parenting Information Group)

The Shared Parenting Information Group (SPIG) was formed to encourage and promote the continuation of parenting after family breakdown. We believe that it is of vital importance that wherever possible both parents should continue to fulfil their responsibilities by retaining a strong positive parenting role in their children's lives, with the children actually spending substantial amounts of time living with each parent.

Shared parenting offers children the opportunity to build up and maintain meaningful relationships with both their parents, and there are a wide variety of parenting arrangements to suit a range of situations, providing for time-splits from 30/70 to 50/50. This overcomes the widespread dissatisfaction of children and parents with the artificiality of traditional contact arrangements - which often relegate one parent to the role of a distant and infrequent visitor.

SPIG makes its resources freely available via its Website at http://www.spig.clara.net and this has received international acclaim. The Website contains a wealth of information ranging from guidelines for separating parents to sample residence / contact arrangements and Parenting Plans. There are also book reviews and references to over 300 articles.

2) Parental Responsibility - The Current Situation

The current situation on parental responsibility is well summarised in the Lord Chancellor's Department consultation paper. The essential position is that all mothers married or unmarried have automatic parental responsibility. Married fathers have automatic parental responsibility whilst unmarried fathers do not. Unmarried fathers by a variety of means can acquire parental responsibility, by agreement, court order, by obtaining a residence order, or by marrying the mother. The key point is that the onus is on the unmarried father himself to acquire parental responsibility. There is no automatic allocation. The issue at hand is whether this situation should continue, whether parental responsibility should be allocated in certain prescribed circumstances or whether it should be given automatically.

3) Why the current situation should be changed

The current law on parental responsibility is plainly unsatisfactory for a number of key reasons;

a) Numbers of births outside marriage.

It is clear that births out of wedlock as a proportion of all births are increasing. By the Lord Chancellor's Department's own figures, 35.8% of births in 1996 were outside marriage. Significantly of these births 58% showed the mother and father living at the same address. The message is clear; the stereotype of the feckless unmarried father implied in the Children Act 1989 has little ground in reality.

There is however the important point that if unmarried fathers were given parental responsibility this would take away an incentive for men to marry. The argument against this is that if withholding parental responsibility was an incentive to marry it has not been a very successful one since the proportion of births outside marriage continues to rise. In 1990 the figure was 28%, in 1991 the year that the Children Act came into force it rose to 30% and in 1992 it rose again to 32%. As we have seen the figure for 1996 is 35.8%. If government is in the business of providing incentives to marry it may be that more meaningful incentives could be provided by reforming the tax and benefit system.

b) Low numbers of PR Agreements and PR Orders

The Children Act 1989 allowed unmarried fathers to acquire parental responsibility in certain circumstances. If we look at the two principle means in which this might happen, parental responsibility agreements and parental responsibility orders, we find that the take up has been very small. In 1996, only 5,587 parental responsibility orders were made by courts and only 3,000 parental responsibility agreements were registered. To put these figures into perspective it should be noted that in 1996 there were 232,663 births registered outside of marriage. Some might say that these low figures evidence the lack of interest of unmarried fathers in their children but a more likely explanation is that people wrongly believe that if they are living together outside of marriage they acquire certain common law rights. Additionally unmarried fathers, like most people, may be reluctant to engage in litigation or involve themselves in judicial processes.

c) Conduct, fitness and marital status

Implicit in the Children Act 1989 is the issue of the fitness of unmarried fathers to be accorded parental responsibility. There is a good deal of confusion here. Married fathers can be capable of the most appalling conduct and so can married and unmarried mothers and yet all of these groups have automatic parental responsibility. There are good and bad unmarried fathers just as there are good and bad married fathers. Marital status is not a necessary determinant of fitness or conduct .The law should reflect this.

d) Practical and symbolic importance of parental responsibility

If unmarried fathers were to be given automatic parental responsibility it would confer a number of rights which would enable them to father more effectively. These rights include the right to consent to adoption, giving permission for their children being taken out of the country, agreeing to a change in child's surname. These are important rights and should not be underestimated. From the fathers perspective however it may be that the most meaningful aspect of parental responsibility is that it has a hugely important symbolic significance. The law by allocating parental responsibility to an unmarried father would be providing a legal acknowledgement of the connection between father and child. The importance of this symbolic element has been underestimated in the discussion to date.

e) Interface with Child Support Act

It is clear that the Children Act 1989 interfaces very poorly with the Child Support Act 1991. In its green paper on welfare reform the government announced that it was committed to a 'root and branch' review of the Child Support Act 1991. As things stand the Children Act denies unmarried fathers parental responsibility but in terms of child maintenance no such distinction is made. This contradiction needs to be remedied.

There may be further advantages in allocating automatic parental responsibility. There is a common sense view backed up to some extent by academic research that argues the more a father feels involved with his child the more likely he is to contribute child support.

f) Exclusion

The government is rightly concerned about the social exclusion of certain key groups in the population. Fatherhood and in this instance unmarried fatherhood should be cast in this context. It is surely wrong that unmarried fathers feel excluded. The current legal position on parental responsibility in effect is an aspect of exclusion. Unmarried fathers seeking involvement with their children and wanting to play a full parental role do so against the grain of the law. If unmarried fathers were allocated automatic parental responsibility it would be a clear signifier of the importance of responsible fatherhood. This point should be set against the emerging debate on fatherhood and the role of men in society.

4) Our Proposals for Change

These are the principles that should inform any change in the law;

a) Automatic Parental Responsibility

Allocation of parental responsibility should be automatic for all parents. The starting point should be a presumption that all parents be allocated parental responsibility automatically. There should be no half way stages.

b) The mother's veto

There should be an end to what effectively has been a mother's veto on the allocation of parental responsibility. Any future policy should rid itself of any vestige of the veto.

c) Gender equality

The principle of strict gender equality should apply. One option would be to make the status of unmarried fathers exactly the same as the status of unmarried mothers. Under this option parental responsibility would be allocated automatically but the court would not have the power to terminate parental responsibility for mothers or fathers. The alternative option is the one originally put forward by Conway (1996) who argued that parental responsibility should be given automatically to all parents but the court should retain the power to withdraw it from unmarried fathers, married fathers and all mothers. This would be done within the overreaching effect of the welfare principle in s.1(1) of the Children Act.

The other point is that made initially by Coote et al (1990) and developed by Burgess (1996,1997,1998). That is that gender policy has largely to date focused on expanding opportunities for women in the public sphere of work, it may now be time to emphasise opportunities for men in the private sphere of home and parenting.

d) A wider strategy of inclusion

There should be a wider strategy of inclusion for unmarried fathers and all fathers. This should include issues like father friendly employment policies, paternity benefits, contact enforcement for fathers apart from their children, a rethinking of the question of shared residence and a positive reform of the law on child support. A purposeful and enlightened reform of the law on parental responsibility for unmarried fathers might be an important first step in such a strategy.

5) Conclusion and summary

The current law on parental responsibility is clearly and plainly unsatisfactory for a number of key reasons. There should be a change in the law so that all parents are allocated parental responsibility as a matter of course. Any change in the law on parental responsibility should be part of a wider strategy of inclusion for all fathers, married, unmarried, separated or divorced.

6) Bibliography

A.Burgess.
(1996). Men and their Children; proposals for public policy. Institute of Public Policy Research.
(1997). Fatherhood Reclaimed; the making of the modern father. Vermillion.
(1998). A Complete Parent - Towards a new vision for child support. Institute of Public Policy Research.

L Burghes, L. Clarke and N. Cronin. (1997). Fathers and Fatherhood in Britain. Occasional Paper 23. Family Policy Studies Centre.

H. Conway. (1996). Parental Responsibility and the Unmarried Father. New Law Journal 31.5.96

A. Coote, H. Harman and P. Hewitt. (1990). The Family Way; a new approach to policy making. Institute of Public Policy Research.

L. Fox Harding. (1996). Family, State and Social Policy. Macmillan.

Lord Chancellor's Department. (1998). Procedures for the Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers.

P. Townsend and A. Baker. (1998). Unmarried Fathers - Are we ending Discrimination at Last ?. Justice of the Peace. 28.3.98. Vol. 162. . No. 13

Arthur Baker and David Cannon, for the Shared Parenting Information Group. May 1998.


Last updated - 25 August 1998
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