Monthly Archives: April 2021

Paternity: Opportunity for Progress for Unmarried Fathers

In this post I draw attention to a little known feature of existing primary legislation concerning the recognition of a man as the father of a child, that is, having Parental Responsibility.

One of the signature issues which, alone , would be sufficient to justify a men’s movement, is the extent to which women control men’s fertility and paternity. A woman automatically has Parental Responsibility (PR) for a child to whom she gives birth. A man has PR if he is married to the mother when the child is born, or if he is named on the birth certificate as the father. Note that neither of these conditions relates to biological (i.e., genetic) fatherhood.

In English law a biological father has no right to be recognised legally as the father via the legal status of PR. If he is not married to the mother, then – short of obtaining a court order – his legal status as a father is entirely dependent on the mother’s consent. If she does not want him to be recognised as the father then she is legally entitled to prevent it and he can override this only via a court order.

The man may be the biological father and he may be a very involved social father too, perhaps living full time with the child and playing a major part in raising the child. He may even be the primary carer. But the mother can still frustrate the man being given PR status is she wishes. In this situation the putative father can apply to the family court for a Parental Responsibility Order. He must pay a fee to apply. The court will decide whether to grant PR based upon the level of commitment he has shown to the child, the degree of attachment between him and the child, and his reasons for applying for PR. In short, he needs to pass a test to attain PR. The extent to which biological paternity is significant in the court’s decision I don’t know, probably not much unless it is contested.

A man who has been prevented from playing a part in a child’s life by the mother, perhaps from birth, may have a difficult task in convincing a court to grant PR since he has no “track record” as a social father. He may seek, at least, to demonstrate biological paternity in the hope that that may help his case in court. But…

If a man wishes to ascertain whether he is the biological father of a child, he is again in the hands of the mother if he does not have PR. To carry out a DNA test on a child requires the child’s consent, but this depends upon the child being old enough to be considered capable of meaningful consent. Otherwise, someone with PR must consent on behalf of the child. Many labs will not carry out “motherless” tests, so even a man with PR may encounter problems. But home testing kits can be obtained. However if a man without PR conducts a test, without the consent of either the child or someone with PR on behalf of the child, then he breaks the law and is liable to be imprisoned (see here). So, if the mother is uncooperative, a man needs PR to carry out a test to prove biological paternity, but he may be seeking proof of biological paternity to underwrite a case to apply for PR – catch 22.

So, that’s the mess that paternity is in for the unmarried father, which means about half of new fathers now in the UK. Most such fathers are, in fact, named on the birth certificate and hence have PR. However, even such cases are egregious in principle because the man’s recognition as the father is within the gift of the mother. Having a gun held to your head is unacceptable even if the trigger is not pulled. But those fathers who are not granted PR, perhaps because the mother is uncooperative, are in the worst position. Of the service users of charity Both Parents Matter Cymru, 9% are in this position.

The beginnings of a solution to this mess, but not the complete solution, already exists in primary legislation. All that is required is for a Minister to enact it; (s)he already has the power.

The legislation in question is the Welfare Reform Act 2009, specifically Schedule 6 thereof. The Act was passed during the last Labour Government under Gordon Brown as PM. The legalese of Acts being somewhat opaque you will find this explanatory guidance more cogent. The key features under this legislation would be…

An unmarried father would have a right proactively to provide his details to the registrar, independently of the mother, and to have his name entered on the register of births. BUT this would still be subject to acknowledgement by the mother that he is the child’s father. The change would be to allow the father to be proactive and for the mother to be placed in the position of having to respond to the registrar. Whereas under existing arrangements a sole registration would not require an active denial of paternity, under the amended arrangements it would.

Technically, the legislated changes would allow the putative father to be regarded as a “qualified informant” in a wider range of circumstances. Under the new provisions, a man would, in particular, be a qualified informant if he is shown through an accredited paternity test to be the father. Unfortunately the Act still requires that the mother consent to the test being carried out. Actually, this would be required under the Human Tissues Act (2004) in any case (see this post).

Readers might be unimpressed by such limited provisions, as the mother can still frustrate a father’s acquisition of PR by withholding consent to DNA testing. But this fails to appreciate the advantage of the changes. Under existing conditions, no action is required by the mother to avoid the father acquiring PR, and the process does not recognise the difference between a man who passionately wishes to gain PR and the feckless run-away father of stereotypical media presentation. The new arrangements would make explicit those cases in which a child’s fatherlessness was due to the mother’s action in bringing this situation about.

The provisions were intended to promote joint registration by couples who are not co-operating with each other. The Government was not, of course, acting out of concern for fathers, i.e., men, but attempting to reduce the number of sole registrants and what that entails in terms of the likely requirement for support via the benefits system. Every father named on the birth certificate is a man who can be tapped for cash via the Child Maintenance Service. So be it. We need to take wins where we can.

The further reason to be keen to see these provisions implemented is in recognition that we face having to eat an elephant. Swallowing the elephant whole is a foolish strategy. Here we have an achievable first bite. That there must be subsequent bites we can acknowledge from the start.

So, finally – if these provisions exist with an Act which received Royal Assent in 2009, why are they not already in force? The reason is that the wording in the key Sections 2D and 2E of Schedule 6 of the Act only give Ministers the power to raise regulations, as opposed to legislating directly for the provisions to be enacted. Specifically, these Sections begin…

(2D): The Minister may by regulations provide for a procedure under which a person may be registered as the father of a child whose father and mother were not married…. 

(2E): The Minister may by regulations make provision enabling a report of a qualifying scientific test to be used in connection with the registration or re-registration under this Act of the birth of a child….

Thus, the relevant Minister already has the power the create the new provisions by writing and implementing the regulations consistent with the Act. No appeal to Parliament is required as this has already been done in 2008/9. The Minister in question will, however, need the courage to face down the howls of anguish from the feminist lobby which will undoubtedly follow. Presumably this is why, more than 11 years later, the approved provisions have not been brought into force. It’s almost as if we are governed, not by Governments or Parliament, but by the feminist hegemony.