There is a difference between being a parent of the child and having parental responsibility for the child. Parenthood is determining who the mother and the father of the child is1. While Parental responsibility was defined in s3 (1) of the children act 19892 as being “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”. Regardless of the marital status the mother of the child, she automatically has parental responsibility, but the father does not unless he acquires it in accordance with the children’s act 19893. Despite the marital status of the fathers to the mothers, they should automatically be awarded parental responsibility of their child. Previous case law shows that the courts are reluctant to remove parental responsibility unless there are serious justifications for doing so, such as causing harm to the child4. It can be quite difficult to establish whether the parents are entitled to be a holder of parental responsibility. When they are not automatically given parental responsibility. This causes discrimination based on gender, and between the different categories of fathers.
One of the main issues with the law on parental responsibility is the way the law establishes parental responsibility through marriage. If you are not the birth mother of the child (regardless of her marital status) you won’t be awarded parental responsibility. An unmarried father is able to gain parental responsibility by being named on the child’s birth certificate, cooperating with the mother in regards to a Parental Responsibility Agreement (PRA)5, by applying for a Parental Responsibility Order (PRO)6 from the court. The unmarried father can indirectly obtain parental responsibility by marrying the mother of the child (not the step-parents) or by obtaining a residence order or by being appointed as the child’s guardian7. For an unmarried father to be granted parental responsibility the courts must consider “if he is a committed father towards the child; if the father and the child are attached; the reasons of the father for applying for the order”8.This will be a problem for fathers who have not been able have to their child because the mother denied him access, this would now make it difficult to prove commitment to a child who has never been with you. PRO is a good idea but it does not offer a solution for the unmarried father to gain parental responsibility, but just help out.
Another issue with not having both parents of a child automatically have parental responsibility, regardless of their marital status is that unmarried fathers can have their parental responsibility removed by a court order9 if the court feels it is necessary. In the case of Re P (Terminating Parental Responsibility) 199510,It was stated that whilst it is possible for unmarried fathers to have their parental responsibility revoked, this “should not become a weapon in the hands of the dissatisfied mother of a non – marital child”11 and instead should only be granted on the basis that the child’s welfare is of paramount consideration. In the recent case of CW v SG 201312 it was supported that is important for the child to know his origins and have a relationship wit his biological father. Parental responsibility must be terminated because the rights of the child outweigh those of the father and as such, parent.
The percentage of children born out of wedlock has increased since the 1970’s, yet the law still doesn’t treat married and unmarried fathers equally. Article 8 of the ECHR13 has given everyone the right and respect for his private and family life, so the childs rights are paramount to that of his father. This can seem unfair to the father, because if the father was married to the mother his rights could not have been revoked, this is in violation Article 8 of the human rights act14 which provides the father’s right to his private and family life and article 14 of the ECHR15 which prohibits discrimination on any grounds.
In conclusion, the law concerning parental responsibility will continue to be criticised for not protecting the unmarried father. Parental responsibility has been criticised for breaching Article 14 of the ECHR because it discriminates between the mother and father, as well as the married and unmarried father, which is discrimination based on gender and the marital status of an unmarried father. The law, therefore, is unsatisfactory and needs to be reformed, and an alternative law should be proposed. The new law should be reformed efficiently to allow unmarried fathers, to gain parental responsibility easier, either with or without the mother’s consent.
1 Herring, J. (2015) Beginning Family Law: First Edition at page 84
2 Section 3 of the children act 1989
3 Section 4 of the children act 1989
4 Re P (Terminating Parental Responsibility) 1995 3 FCR 753
5 Section 4 (1) (b) of the Children Act 1989
6 Section 4 (1) (c) of the Children Act 1989
7 Section 5 (6) of the Children Act 1989
8 Re H (Minors) (Local Authority: Parental Rights) (No. 3) 1991 2 All ER 185
9 Section 4 (3) of the Children Act 1989
10 4 Re P (Terminating Parental Responsibility) 1995 1 FLR 1048
11 Re P (Terminating Parental Responsibility) 1995 3 FCR 753 at pg. 753
12 CW v SG 2013
13 Article 8 of the European Convention on Human Rights 1950
14 ibid 12
15 Article 14 of the European Convention on Human Rights 1950