Shared Parenting Information Group (SPIG) UK

Reform of UK law on unmarried fathers and parental responsibility


In March 1998 The Lord Chancellor's Department (UK) issued a consultation paper:

Procedures for

The Determination of Paternity

and on

The Law on Parental Responsibility for Unmarried Fathers


Click here for the full text (60K)

The Lord Chancellor's Department is concerned that current law does not reflect what many people simply assume - that an unmarried father has parental responsibility, especially if the mother and father have jointly registered the child's birth.

The facts are that in 1996 there were 649,485 births registered in England and Wales, of which 232,663 (35.8%) were outside marriage. The father's details were included on the birth certificate for 181,647 (78%) of births outside marriage. The father and mother were living at the same address in 74.4% of these joint registrations, and in 58% of all births outside marriage. But in the same year, 1996, the courts made only 5,587 parental responsibility orders, and only around 3,000 parental responsibility agreements are registered each year - a total of less than 4% of births to unmarried people.

Section 2 of the document deals with reform of Parental Responsibility under these headings

PART II: PARENTAL RESPONSIBILITY FOR UNMARRIED FATHERS
Essentially two options for reform are outlined:
  1. Automatic and presumptive parental responsibility irrespective of the 'merits' of the father
  2. Some kind of limited parental responsibility. The example mentioned is to give parental responsibility to those unmarried fathers who jointly register the birth with the mother.

The current position on parental responsibility

In the Children Act 1989 s3(1) parental responsibility is defined as 'all the rights duties powers and responsibilities which by law a parent of a child has in relation to a child and his property'. Beyond this its not defined.

The importance of parental responsibility to unmarried fathers and separated fathers is in its symbolic value - it is a highly valued symbolic link with the child.

Disadvantages for unmarried fathers not having parental responsibility:
  1. they will not be asked for their consent in adoption proceedings
  2. removal from country needs consent from a parent with parental responsibility
  3. can't change name of child without consent of a parent with parental responsibility
  4. parents without parental responsibility can't take their children out of local authority accommodation / voluntary care
Currently married and unmarried mothers automatically get parental responsibility. So do married fathers, but unmarried fathers do not.

Unmarried fathers can get parental responsibility by:
  1. marrying the mother
  2. getting a residence order on the child
  3. reaching a parental responsibility agreement with mother and registering it with the Principal Registry of the Family Division
  4. getting a parental responsibility order
  5. being appointed guardian when the mother dies
The easiest way for unmarried fathers to get parental responsibility by making a parental responsibility agreement with mother. This is easy to do and forms are available at court. If the mother does not agree then the only option to apply for parental responsibility order. Case law indicates that if fathers have a commitment to child they are pushing at open door .
The lead case is: Re H (minors) (local authority; parental rights) (1991) Fam Law 151.
Here Lord Justice Balcombe identified three factors as important : NB parental responsibility orders granted in this way can be terminated by court

What SPIG says

SPIG supports the principle of presumptive parental responsibility. All fathers should automatically acquire parental responsibility. This should have been included in the 1989 Children Act and it is an example of clear discrimination against fathers that it was not. We therefore argue the case for automatic parental responsibility for unmarried fathers on strictly egalitarian grounds.

Clearly there are unmarried fathers who do not deserve parental responsibility, just as there are married fathers and many married and unmarried mothers who do not deserve it. One idea that we are looking at is that courts should retain a power to take parental responsibility away from parents in exceptional circumstances e.g. where mother was raped, but this rule should apply to mothers and fathers whatever their marital circumstances.
see Helen Conway (1996) Parental Responsibility and the unmarried father. New Law Journal May 31.

SPIG will be making its own submission to the Lord Chancellor's Department.
Comments from web site readers to: email SPIG please.

The Lord Chancellor's Department says:

The consultation exercise seeks views on possible changes to the law on the determination of paternity through the courts, and on the acquisition of parental responsibility by unmarried fathers. The Lord Chancellor's Department welcomes your views on these proposals, whether or not your response is confined to the specific questions raised in the paper.

If you wish to comment on these proposals, please send your reply, stating your name and address and indicating whether you are responding as an individual or as the representative of an organisation, by Tuesday 5 May 1998, to:
Miss B M Griffith-Williams
Family Policy Division
Lord Chancellor's Department,
Selborne House,
54 Victoria Street,
London SW1E 6QW.

Your comments, clearly marked for the attention of Miss Griffith-Williams, may also be e-mailed to: enquiries.lcdhq@gtnet.gov.uk

Arthur Baker and David Cannon
Last updated - 2 September 2002
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