The Continuing Disadvantage of Unmarried Fathers


Later this year, the Children’s Hearings (Scotland) Act 2011 comes into force, and was an ideal opportunity to redress the current discrimination of unmarried fathers who didn’t gain automatic PRR (Parental Rights and Responsibilities) [unmarried fathers with children born on or after May 4th 2006 and are named on the child's birth certificate do have automatic PRR]

Parental Rights and Responsibilities afford parents not just responsibilities in the upbringing of their child, but certain rights, most notably the right to have the child live with them, or the right to maintain contact with the child. (Children Act (Scotland) 1995 (s)2).

Without PRR, a father can not be considered to be a “relevant person” with regard to court hearings involving their child/ren (mothers automatically have PRR, and therefore are automatically classed as a relevant person). It is astounding that a father without PRR has to face a lengthy, costly and wholly unnecessary legal procedure to gain status as a “relevant person” – even if that father has in place a contact order or other (s)11 order, or where the father has a longstanding and close relationship with his child. The onus is on the father to prove that he has an active involvement with his child/ren. The case of Principal Reporter v K [2010] highlights this lengthy procedure. This is particularly concerning and unsatisfactory where allegations have been made against a father like K, who is afforded neither the opportunity to refute the allegations, nor any right to appeal against a decision. . However, the Supreme Court, in K’s case, was concerned that K had to overcome a “burdensome procedural hurdle”, given the potential time and costs involved. It could be argued that such a hurdle has not been removed by the Act. Where the unmarried father has established a family life with the child, there does not appear to be any good reason why he should not have an automatic right to participate in the decision-making process affecting his child.

As things stand, unmarried fathers without PRR will continue to have to apply for “relevant person” status, as this new Act has omitted to address this properly, instead relying on the discretion of Ministers to apply discretion under (s)200, which continues to exclude from its application, unmarried fathers with no PRRs, but who have a contact order or specific issue order under s 11 of the 1995 Act. With no opportunity for the courts to “read down” and apply a creative interpretation of the legislation to include unmarried fathers within the definition, as occurred in Principal Reporter v K, some may argue that the new definition is in fact regressive.

Over the border, The Lib Dems are making moves to block plans to change existing proposals so that all birth certificates are required to include the name of the father – married or unmarried. The Families Minister (and feminist) Sarah Teather claims that such a a change in law is unnecessary and is refusing to agree to the proposed implementation. How fantastic – a Families minister that doesn’t like fathers. Currently around 50,000 mothers a year [in England/Wales] fail to include the child’s father on the birth certificate, and therefore denying the child the security of being formally acknowledged by both parents. The Lib Dem have claimed that such a change in law would mean that children would be “tarred by being permanently associated with undesirable fathers and undermine the rights of mothers whether or not to acknowledge paternity” – ah, we are back again to the rights of mothers. Its quite simple ladies, if you don’t want to have a child with a man, don’t have unprotected sex with him. These proposed changes, of course, don’t apply to those who have a child as the result of rape or from sperm donation.

Fathers in general are viewed as second-class citizens by those who wish to undermine the vital role fathers play in their children’s lives, and unmarried fathers are at the bottom of the heap. The continuing discrimination of unmarried fathers is abysmal, and one that urgently needs to be addressed. Those couples who choose to not seek state sanctioning of their relationship, and not marry, are disadvantaged from the start, from a legal viewpoint, and fathers in particular. But regardless of whether parents are (or were) married to each other or not, that should not impact upon the relationship between father and child, legally or otherwise. By not naming a father on a birth certificate, and with little recourse for a father for have the birth re-registered (especially where the mother will not give consent), unmarried fathers are severely disadvantaged, and the child is denied official and formal acknowledgement of their paternal bloodline. Yet again, it is mothers who hold all the cards, and there are those in Government who are assisting them. Shameful.

13 Comments

Filed under equal parenting rights, unmarried fathers

13 responses to “The Continuing Disadvantage of Unmarried Fathers

  1. Well said QV, every word is accurate reasonable and fair, and I fail to see how anyone could not see the valid points you make. Therefore, If those in power will not, or just blindly refuse to see the total logic of your argument, then the only explanation for thier unreasoning stance must be one of gender bias, because I see no other reason than JUST THAT!

    I am one of those fathers that does not have PR and that was only due to a matter of timing. Because my son was born 6 months before the PR law changed I didnt get it, and yet my name is on the birth certificate! How ridiculous is that? However, had my son been born after the date of the law change, then I would have got PR! Its damn well farcical, why the hell they didn’t make the new law retrospective lord knows! I am now left fighting with expense to get my rights to PR and to face an EX who refuses to give it, but of course I have to prove that I am a fit father first, so am made to jump through hoops like some idiot chimp. And all this from a father who was the main carer of his son since birth! Justice, there is none for good fathers!

  2. I can’t see how it would be possible to make the implementation of a law retrospective – there does need to be a defined starting point for when a new law comes into force.

    How do you think a retrospective implementation would have worked?

    • Making that particular law, about PR, retrospective would have indeed worked and not left some fathers in limbo or in anomoly. In July 2002 any father, (such as me) who was not married to the mother, when his child was born, but did have his name appear on the birth certificate (in my case my son was given my sir name as well) such a father did NOT get the right to PR, had he been married to the mother he would have. Just six months later the law changed allowing a father, in the exact same circumstance I have outlined, to indeed have an automatic right to PR. What I am saying is that given those circumstances (only) then it would have been fair and just to make that law retospective for fathers who’s name does appear on the birth cert. Unmarried fathers who had chidren 2 weeks bofore the law changed, and in the exact same circumstance I have mentined, were now NOT have been given PR, but unfairly been caught in an anomaly of the law, due to one factor only, THE DATE OF HIS CHILD’s BIRTH. I am not saying here that fathers whose name DID NOT appear on the birth certificate should have the new law on PR applied to them retrospectively, only those fathers where it did appear, and for those they should have had the spirit of that new law applied to them looking backwards. So, those who had children, pre the new law, are descriminated against just because thier child was born on the wrong date for it to apply, lets say, just ONE DAY BEFORE the new law changed, this has led those fathers to go cap in hand to the ex’s to ask her to sign the PR agreement, if she doesnt want to, than off to court you go and try and get it, where you then have to prove your a fit father and be charged for the privelige. And yet those fathers who had the new law appled to them, who were in the exact same circumstance as the father going to court to get PR, they may be bad fathers, but yet that have PR by right. This is whay I think that the new law should have been made backword looking for me and lots of other fathers whose name was on the Birth certificate. The whole matter is one of an anomaly of the law, and those caught up in it are anfairly disqualified and hamstrung in trying to obtain PR, just because the matter is now in the hands of a judge at the family courts, but not for those who got PR automatically since the law changed. HIGHLY UNFAIR!

  3. 4orseti

    Fascinating and informative post, QV.

  4. Thank you QV, I didnt think you would disagree mate, I think we are on the same page with PR, and that is it’s really unfair! The whole situation is a mish mash of birth dates, signatures and whether mum decides to give priveliges out Have to get some pressure on this issue Rgds.

  5. Pingback: Child Arrangements after Separation in Scotland | quantumvaleat

  6. The principles by which decisions are made in both the Scottish & English family courts are the same. Scottish law is based on the Children’s Act which does not give parents a legal right to see their children after separation or divorce & both the government & courts are at odds with the social scientists who says in normal circumstances, overnights and “shared parenting should be the norm for children of all ages.

    The family courts don’t give equal consideration to the damage it causes a child to remove it’s father or any consideration of the harm it causes fathers to stop them from seeing their children. The current family justice system is adversarial & abusive towards those it’s supposed to best serve.

    http://www.ukfamilylawreform.co.uk/

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  9. Dee

    what a load of nonsense. I am going through court with an ex partner and NO consideration is made towards me. It’s all about what he wants and none of my legitimate concerns are addressed. I have been demonised and wrongly accused. Also had my character assassinated by my ex. The courts believed him and paid no heed to me!!!! The legal system is severely skewed towards fathers with no consideration towards mothers!

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