| 5
Parental Responsibilities and Rights: Unmarried Fathers |
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| 5.1 Introduction |
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| 5.1.1 This
part of the Consultation paper is concerned with parental
responsibilities and rights and in particular the
circumstances in which unmarried fathers should receive
them. The present position is that unmarried fathers do
not automatically have parental responsibilities and
rights. This was reaffirmed only recently in the Children
(Scotland) Act 1995. However, the increasing number of
children born to unmarried parents, and recent policy
developments in England & Wales, make it desirable to
consider the matter afresh. |
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| 5.2 Historical background |
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| 5.2.1 Before
this century, fathers had custody rights in respect of
Scottish children born within wedlock, and the mothers
generally did not. The reverse was true of children born
outside marriage. Successive Acts during the twentieth
century have removed the disabilities suffered by
children born outside marriage, and have removed the
legal inequalities between mothers and fathers. Most
recently there has been a marked shift away from the
concepts of parental rights and towards the
responsibilities parents have for their children, and
indeed the rights of the children themselves. |
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| 5.2.2 There
is now no difference between fathers and mothers in the
eligibility to have parental responsibilities and rights
in Scotland, where the parents are married to each other
(or have been married to each other at any point since
the conception of the child). However, in the case of
unmarried parents, the Children (Scotland) Act 1995
confirmed that only the mother has parental
responsibilities and rights automatically. The father is
eligible to acquire them, but this must be either by
marrying the mother, by signing a Parental
Responsibilities and Parental Rights Agreement6
or by court order. |
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| 5.2.3 In
this, the Children (Scotland) Act did not follow the
recommendation of the Scottish Law Commission. In its
1992 Report on Family Law7, the SLC considered the question
of who should have parental responsibilities and rights.
They noted that an increasing number of children were now
being born outside marriage and questioned whether the
existing provision was in line with current social
attitudes. |
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| 5.2.4
Although consultees' opinion in 19908 was divided, it favoured giving
parental responsibilities and rights to all fathers, and
the Commission recommended: |
| "In the
absence of any court order regulating the position, both
parents of the child should have parental
responsibilities and rights whether or not they are or
have been married to each other." |
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| 5.2.5 As a
fallback position, the SLC noted that a clear majority of
consultees favoured enabling fathers to acquire parental
responsibilities and rights by making a Parental
Responsibilities and Parental Rights Agreement with the
mother and registering it. |
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| 5.3 Children (Scotland) Act 1995 |
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| 5.3.1 When
it proposed legislation in 1994, the Government did not
favour the automatic granting of parental
responsibilities and rights to all unmarried fathers.
During the passage of the Children (Scotland) Bill9
a wide range of
interests, and in particular those connected with the
protection of women from domestic violence, were
concerned that such a move would expose mothers and
children to abuse and violence at the hands of former
partners who would be given an entitlement to interfere
in the family. Instead, the Government adopted the
position at paragraph 5.2.5 above. |
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| 5.3.2 The
concern was raised during debates in Parliament that
mothers might be forced to sign Parental Responsibilities
and Parental Rights Agreements under duress. In practice,
this does not seem to have been a significant problem. On
the other hand the forecast by critics that take up of
the Agreements would be low has turned out to be true, in
spite of efforts to make the procedure for making
Agreements as user friendly as possible. |
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| 5.4 Problems |
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| 5.4.1 The
proportion of children in Scotland born to parents not
married to each other has been increasing fast, from 21%
in 1986 to 30% in 1992 and 38% in 1997 (see Annex B).
This is not because fathers have become increasingly
reluctant to acknowledge their children, since sole
registrations, where only the mother's name appears in
the entry of the register of births, have remained very
constant at a steady 7% in every single year. In 1997, of
some 59,000 births registered, 37,000 of them were to
married parents, 18,000 of them to parents not married to
each other but registering jointly (where both parties
must consent to the father's name being included) and
4,000 of them registered to the mother alone |
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| 5.4.2 In
1997, therefore, some 18,000 fathers in Scotland
personally and formally acknowledged fatherhood on the
statutory register of births, yet the present law gave
them no automatic parental rights or responsibilities.
Furthermore some 13,000 of these fathers were recorded as
living at the same address as the mother at the time of
the child's birth, and so might be presumed to have some
involvement in the child's upbringing, at least at the
beginning. |
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| 5.4.3
Against this background, the parental responsibilities
and parental rights agreements procedure introduced by
the Children (Scotland) Act has made little progress.
Some 13,500 forms have been issued but from November 1996
to June 1998, a 20 month period spanning calendar year
1997, a disappointing 322 agreements were registered, in
a period when about 30,000 unmarried couples jointly
registered their babies. Even if the use of Agreements is
now assumed to have increased to 250 a year as the
procedure has become better known, a take up of 2% after
two years is clear evidence of a failure to reach the
parents and children the Agreements were intended to
benefit. |
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| 5.4.4 It is
not possible to say how many unmarried fathers were given
parental responsibilities and rights by the courts or by
subsequent marriage but it is probable that many
thousands of fathers of children born each year will not
have parental responsibilities and rights conferred by
law. It may be that this situation is due to ignorance by
parents and their advisers of the availability of
Parental Responsibilities and Parental Rights Agreements.
It would be possible for the Government to mount an
extensive publicity campaign to encourage the use of
Agreements, but it is not certain to have a significant
effect. |
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| 5.4.5 The
position in England and Wales is similar to that in
Scotland, although there making a Parental Responsibility
Agreement involves rather more formalities. The Lord
Chancellor issued a consultation paper on the law on
parental responsibility for unmarried fathers in March
1998 and in July it was announced that the Government
intended to legislate to implement his proposal that, for
England and Wales, all fathers who register births
jointly with the mother should have parental
responsibilities. |
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| 5.5 Options for reform |
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| 5.5.1 Existing
Provision: Unmarried
fathers do not automatically have parental
responsibilities and parental rights; fathers acquire
them by marriage to the mother; mothers can agree to give
them to the father using a Parental Responsibilities and
Parental Rights Agreement; or the courts can give them to
a father. It may be argued that the system of acquiring
parental responsibilities and rights by Agreement is only
just becoming established in Scotland, and with further
publicity it might yet become the normal practice for
unmarried parents to complete an Agreement when they
register the birth of their child. |
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| 5.5.2 One
option for change would be to give parental
responsibilities and parental rights to fathers named in
the Register of Births: Unmarried fathers would not automatically
have parental responsibilities and parental rights, but
an unmarried father would acquire them if he jointly registers
the birth with the mother. Fathers could also still
acquire them by existing methods. |
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| 5.5.3 The
other option for change would be to adopt the SLC 1992
recommendation that all fathers should automatically have
parental responsibilities and parental rights: Fathers would be in the same
position as mothers and have parental responsibilities
and parental rights unless a court removes them. The only
criterion for the automatic acquisition of parental
responsibilities and rights would be biological
parenthood. The genetic parents of adopted children or
those conceived by artificial techniques would not be
covered10. The presumption would remain that
a man who was married to the mother at any time during
the pregnancy was the father. This presumption could be
rebutted in a court. There would be no need to have
Parental Responsibilities and Parental Rights Agreements.
People other than the biological parents could continue
to be given parental responsibilities and rights by the
courts. |
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| Question 14. Views are sought on which of
these options should be pursued. |
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| 5.6 Transitional arrangements |
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| 5.6.1 If the
law were changed to give parental responsibilities and
rights either to all unmarried fathers, or to those who
had jointly registered the birth, it would need to be
decided whether the new arrangements covered the
unmarried fathers of all children, or only those whose
children were born after a given date. If it applied to
all unmarried fathers (or those who had jointly
registered the birth), then a mother might discover that
a former partner, who she had thought was safely out of
her life, could suddenly re-emerge armed with the same
rights that she had. She will therefore be faced with
either hoping that nothing will happen or facing the
expense and difficulty of going to court to apply for the
newly conferred rights to be removed. This difficulty
might be avoided by making any change to the law apply
only to children who were born after a given date
following the passing of the law. For children born
before this date, the present law would continue to
apply. |
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| 5.6.2 Such
an arrangement, while it would provide some reassurance
for women who feared disruption at the hands of their
former partners, would be seen as unfair to existing
unmarried fathers. Whether they had automatic parental
responsibilities and rights would depend on an accident
of the calendar, and a father might have responsibilities
and rights in respect of one child, but not of an older
sibling. |
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| Question 15: Comments are sought on
whether or not to have transitional arrangements
including a cut-off date, if there was to be a change in
the law. |
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| 5.7 Protection for the vulnerable |
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| 5.7.1 Fears
have been expressed that automatic parental
responsibility for all fathers would give rights to those
who had fathered a child by rape; and that fathers who
had acquired parental responsibilities and rights might
be violent to the mothers. The SLC considered that no
special protection was needed in such circumstances, as
the mother could ask the court to deprive the father of
his rights. If the option was accepted to give all
unmarried fathers parental responsibilities
automatically, ways might have to be considered to give
the mother special rights to object, or to raise an
emergency action in the court. |
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| Question 16. Comments are sought on the
degree of protection which may be required by the
children (and their mothers) of unmarried fathers. |
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| 5.7.2 As
mentioned above, there were also fears during the passage
of the Children (Scotland) Act 1995 that undue pressure
would be brought to bear on mothers to sign Parental
Responsibilities and Parental Rights Agreements. While
this does not seem to have materialised, there may still
be concerns that, if parental responsibilities and rights
were given to fathers who had jointly registered the
birth, the 21 day period within which the birth must be
registered might not be the best time to make decisions
on what is best for the child. Apart from cases of
post-natal depression, the emotions surrounding the birth
may cloud the parents' judgement as to whether the birth
should be jointly registered. As more mothers become
aware of the legal consequences of joint registration so
some might wish to avoid conferring rights on the father,
by refusing to agree to joint registration. |
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| Question 17. Comments are sought on any
practical consequences of a change in the criteria for
acquiring parental responsibilities and rights. |
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| 5.8 Summary of questions on
parental responsibilities and rights for unmarried
fathers |
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| Question 14: Which option do you favour: |
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| a. that there should be no change to the
law on the acquisition of parental responsibilities and
parental rights by unmarried fathers; |
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| b. that an unmarried father who registers
the birth of a child jointly with the mother should
acquire parental responsibilities and parental rights in
respect of the child; or |
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| c. that in the absence of any court order
regulating the position, both parents of the child should
have parental responsibilities and rights whether or not
they are or have been married to each other? |
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| Question 15: If there were a change to
the law, should it cover all children, or only those who
are born after a cut-off date? |
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| Question 16: Comments are sought on the
degree of protection which may be required by the
children (and their mothers) of unmarried fathers. |
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| Question 17: Comments are sought on any
practical consequences of a change in the criteria for
acquiring parental responsibilities and rights. |
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