Fathers Direct has written this briefing note on the subject of joint registration on birth certificates, and we would like to receive feedback from our partners in advance of drawing up a formal response to the government’s white paper on child maintenance. If you would like to make a contribution, please contact us via http://www.fatherhoodinstitute.org/index.php?nID=36.

Should there be a requirement for both parents to be named on their child’s birth certificate?

1. Introduction

The DWP White Paper, A new system of child maintenance, proposes:

“The birth registration system needs to do more to actively promote joint registration and current legislation should be changed to require both parents’ names to be registered following the birth of the child, unless it would be unreasonable to do so.”

This briefing focuses solely on this particular proposal, given its newness. It assesses the current system and the proposed system from different perspectives, identifying strengths and weaknesses in each.

18% of unmarried fathers do not sign the birth certificate in the UK (which is 7% of all fathers). This means just under 50,000 children each year in the UK having no registered father at birth.

2. Current situation

2.1 How birth registration is currently managed

At present, mothers’ names must always be registered on the birth certificate. If the natural parents are married to each other at the time of conception or at the time of the birth, then both parents must be named on the birth certificate, and either parent can register the birth. There is a small fine for not registering the birth within 42 days. If the natural parents have married each other since the birth, re-registration is required to show the child as a child of the parents’ marriage.

If the parents are not married, then it is essentially the mother’s choice at the point of registration if the father’s name is registered. If she chooses not to register the father’s name, but the father wants to be registered, he can seek a Parental Responsibility Order (PRO) in the family court, where the issue is decided on the basis of the child’s best interests. He may then make an application to amend the register, using the PRO as proof of paternity.
A mother cannot register a father without his knowledge – every route to his registration requires his signature. (Special arrangements exist if the father has died – e.g. provision of marriage certificate and death certificate, or proof of his consent to IVF treatment.)

So registration of the mother is automatic, on the basis of the fact of the birth. Registration of the father is conditional on one of two things:
• the consent of the mother (through marriage or directly at registration);
• the decision of the court on the basis of the child’s best interests.

2.2 Parental Responsibility and unmarried fathers

Registration is linked to the legal status of Parental Responsibility (PR) for unmarried fathers. All mothers and married fathers get PR automatically. For unmarried fathers, PR is not automatic, but being registered on the birth certificate is one way by which they can obtain PR. Any change in the law on registration will therefore impact on the legal standing of these fathers, and the implications of this need to be analysed in any consideration of changes to the birth registration process.

Even if unmarried fathers are registered on the birth certificate and get PR, their legal standing is still currently different from mothers and married fathers. PR can only be taken away from mothers and married fathers if the child is adopted. But anyone with PR (or the child him/herself) can make an application to the court to have PR removed from an unmarried father, which will be decided by the court in the best interests of the child. However, in practice, the courts rarely remove PR in this way.

2.3 What PR is and how it is exercised

In practical terms, PR means the legal authority to make important decisions in relation to a child – all those with PR need to agree. PR therefore confers the following legal rights:
• Choice of child’s name
• Choice of child’s school
• Choice of child’s religious upbringing
• Consent to the child’s medical treatment
• Decision where child will live
• Consent to child’s marriage if the child is under 18
• Consent to the child’s adoption
• Application for a passport
• Looking after property to be inherited by the child

Where those with PR disagree about such decisions, they may have recourse to mediation or the family courts to decide the issues for them. This circumstance usually arises after parents separate. Where the courts are involved, they will decide the issue in the best interests of the child. Otherwise, in practice, it is generally – although not always – the resident parent’s wishes that prevail.

The exercise of PR can, if necessary for reasons of child welfare or safety, be controlled by the courts through the use of section 8 orders (orders requiring someone to do or not do something in relation to a child), or through the child protection system.

It should be noted that a natural father without PR still has certain legal rights in relation to his child, e.g.:
• an automatic right to apply to the court for certain court orders in respect to his child
• in an emergency, the right to consent to medical treatment for the child
• if the child is being looked after by the local authority, the right to have reasonable contact with his child and the right for the local authority to give due consideration to his wishes and feelings in relation to important decisions they make about the child, including decisions about adoption and contact arrangements after adoption.

3. New proposal

3.1 Description

The White Paper would make registration for fathers on the child’s birth certificate a legal requirement, irrespective of marital status, “unless it would be unreasonable”. The White Paper argues this on the grounds of the right of the child to know that both parents are responsible for them.

As now, there would be no circumstances in which it could be deemed unreasonable to register the mother.

Also as now, registration would confer Parental Responsibility on unmarried fathers.

3.2 What would the requirement to register the father mean in practice?

The White Paper presents three examples of situations where non-registration of the father may be acceptable:
• the mother does not know who or where the father is;
• the mother does not want the father to be named in some circumstances, such as rape or a coercive relationship;
• child welfare grounds (unspecified).

However, the White Paper does not specify how the reasonableness of non-registration would be determined, nor what happens if one or both parents “unreasonably” refuses to identify and register the father.

There are a wide variety of options here. It is not possible in this briefing to compare every future possibility with the current situation. Therefore, in the table below we set out some tentative suggestions for how this matter might be handled in the new system, and we compare this with the current system.

The proposals are intended to stimulate debate and we ask colleagues to comment on them. This is not the final and formal position of Fathers Direct – we will make our formal proposals as part of the response to the White Paper, with the benefit of having listened to other contributions to this debate.

For ease of analysis, this briefing looks at four scenarios:

• Mother identifies father: Yes; Father agrees to sign: Yes
• Mother identifies father: Yes; Father agrees to sign: No
• Mother identifies father: No; Father agrees to sign: No
• Mother identifies father: No; Father agrees to sign: Yes

Scenario: Mother identifies – yes; Father agrees – yes
Proposed response: The parents are both registered. No issue arises.

Scenario: Mother identifies – yes; Father agrees – no
Proposed response: If the father persistently refuses to agree to the registration against the mother’s wishes, she could obtain a Declaration of Paternity from a court, which he could only rebut in court by proving he was not the father.

Scenario: Mother identifies – no; Father agrees – no
Proposed response: Registrars could assess the reasonableness of not registering the father against specified criteria. The father in these situations would be unlikely to be in contact with the Registrar, so it would mean the mother would have to supply evidence to the Registrar that non-registration was reasonable. If the Registrar disagreed, they would seek to establish who the father is, and register him despite the mother’s and father’s objections.

However, we believe this is unworkable, and could lead to inappropriate pressure being put on mothers to disclose details about the father.

Instead, we suggest that the expectation that the father should register should be expressed clearly and sensitively in all documentation and procedures. Registration would then be explained as a record of the basic facts of a child’s parentage. The mother would have the option to state that she does not know who he is and/or where he is. She would not need to supply reasons, and the Registrar would not seek proactively to identify the father.

Scenario: M identifies – no; Father agrees – yes
Proposed response: There would be some cases where the mother states she does not know who the father is and/or where he is, or is objecting to his registration, but the father’s identity is or becomes known to the Registrar (normally because the father has identified himself). In these cases, we suggest the matter should be referred to the court for a determination of paternity. If it is established, the father’s name would be registered, whatever the surrounding circumstances.

Registration would thus be treated as a record of the basic facts of a child’s parentage. Since registration would also confer PR, the court would also consider at the same time whether there were grounds to limit the exercise of PR through a section 8 order in the child’s best interests.

Of course, as now, other mechanisms to protect children from harm from mothers and married fathers would apply equally to harm from unmarried fathers.

In all these scenarios, we suggest specific advice and support services are promoted to and accessible to both parents, individually and together. This would be in the form of written material (off-line and on-line), a telephone helpline (ParentlinePlus is already promoted to parents around birth registration) and access to face-to-face support locally (e.g. as part of the relationship support infrastructure proposed elsewhere in the White Paper). The level of investment in this would be a test of true commitment to the responsibilities of fathers and the welfare of the child.

4. Comparison

4.1 Method

This comparison looks at how the two systems impact on five factors:
• the positive or negative involvement of fathers in children’s and women’s lives
• wider attitudes about the roles and responsibilities of fathers
• equality between women and men and their human rights
• the child’s right to know his or her natural parents
• practicability

There is an issue about whether these are valid factors to consider in the first place. This document does not address this fully, though references to validity are included in some of the individual comparisons below.

4.2 Positive or negative involvement of fathers in children’s and mothers’ lives

We know practically nothing about the circumstances of the 7% of families where no father is registered at the birth. We have not been able to identify any research. This makes any comparison of the influences of the two systems on father involvement rather theoretical.

So what can we say (and what do we need to find out) about the relative impact of these systems on the wellbeing and safety of these children and their families? There are two broad potential risks inherent in both systems: the exclusion of fathers who would go on to make a positive contribution to their child’s life, and the inclusion of fathers who would go on to make a negative contribution to their child’s life. We need to assess how far the current and proposed systems are different in the extent that they carry these two risks.

It is possible to argue that birth registration should not be seen as a tool for either encouraging or discouraging participation of fathers or mothers in their children’s lives. Other measures are available to support or inhibit parental involvement and thereby safeguard children.

Even if this argument were to be accepted, we must still consider the potential impact of the current and proposed UK systems on the wellbeing and safety of children and their parents – especially given the likely greater vulnerability of the 7% of families where no father is registered.

Problems with current system

The impact of unmarried fathers not having PR (by not being registered and by not, subsequently, taking the steps necessary to get PR) might seem to be very little in terms of fathers’ day-to-day involvement in their children’s lives. A parent with PR is entitled to delegate it to whoever is looking after the child, including the father of course. In an emergency, fathers without PR can still consent to medical treatment for the child. In any case, agencies having contact with children generally do not enquire about the father’s PR status, and will usually only do so where there is evidence of substantial conflict with or estrangement from the mother, or major child welfare concerns regarding the father’s care of the child.

However, there are a number of significant possible effects from the father’s not having PR that must be considered.
• The family’s sense of the father’s responsibilities could be undermined and, therefore, this could reduce his efficacy as a father. It might make him feel less involved, and the mother might feel less secure and more responsible.
• It would in general give the father no legal right to be consulted or agree to major decisions affecting the child.
• It could undermine the father’s involvement in his children’s lives where this is most at risk – e.g. when the parents separate or are in major conflict.
• Where there are concerns for a child’s welfare or safety, of whatever sort, the fact of his not having PR could discourage him from feeling responsible and empowered – and could make it less likely that agencies engage with him effectively as risk and/or resource.
• If the child’s mother died, the father would need to get PR by applying to court in order for his children to live with him – which would be stressful and time-consuming –.

All of these effects would be detrimental to the child in those cases where the involvement of the father would be positive – or could become positive over time and with support. To that extent, these effects would be detrimental to mothers too – who generally benefit substantially from more positively involved fathers.

It might be thought that, since these fathers have not been offered or sought registration or PR, they might be likely to be less motivated and positive as fathers. That is indeed possible. However, the reality is that we simply do not know anything about these fathers. There are many reasons why a mother may not seek to register the father – and we cannot simply assume it is because he is risky or problematic to her or the child. Some fathers themselves may decide not to seek registration on the birth certificate, nor to go to court for PR, because they believe these steps could
• harm themselves (e.g. fears of liability for child support; and that contact with ‘the law’ could expose them to prosecution in other areas)
• harm the mother (e.g. her access to benefits)
• harm their children (e.g. where his relationship with the mother is conflictual and unstable, a father may fear that by seeking PR his contact with his children will be disrupted or stopped).

Furthermore, for many fathers, seeking PR through the courts is neither a realistic nor an attractive option. It is a time-consuming, costly and stressful process, for which they may lack the material or psychological resources.

More generally, the child welfare rationale for treating fathers and mothers who are a risk to their children differently in terms of registration and PR is not clearcut. Where a mother or father poses a risk to their child, it is unclear to us why the interests of that child would require the father – but not the mother – not to be registered on the birth certificate and to be denied PR.

Potential problems with proposed system

A father being registered and having PR under the proposed system could have the following effects:
• It could provide greater opportunities for fathers to be disruptive or harmful to the child or the mother – at the time of registration and later in the child’s life. The high threshold of risk that triggers involvement of social services might not be sufficient to capture all such increased risks, and the lack of attention of family services to negative fathering increases the risk that some fathers’ negative contributions would go unchallenged.
• Both parents having PR creates added scope for disruption where parents are in chronic and severe conflict, even if both have the capacity to be adequate parents individually.

In the proposals we have made, two means exist for seriously dangerous fathers to be excluded. Firstly, if he does not make himself known, a mother can avoid declaring his name and no penalties will apply to her. Secondly, if the father wants to register against the mother’s wishes, the court, whilst it cannot deny PR to any parent on child welfare grounds (as it currently prevented from doing so except for unmarried fathers), the court can use a Section 8 order to limit the exercise of PR by any parent on child welfare grounds.

Conclusion

Our view is that these arguments are not conclusive either for or against the proposed change. While it would seem possible that the proposed system might provide new opportunities to encourage and support strong father-child relationships, we cannot be certain that this is the case. And there are a number of other unknowns For example:
• We do not know what impact the changes would have in individual families.:
• There is no firm evidence that the overall impact would be detrimental to children or mothers.;
• We do not know whether current measures for protecting children and adults from harm are sufficiently effective in families where both parents already have PR.

If the proposed system were adopted, it would need to be carefully monitored for its impact on children, mothers and fathers, and other measures introduced to support positive relationships in those families affected.

4.3 Wider attitudes about the roles and responsibilities of fathers

Problems in current system

The automatic registration of mothers and the conditional registration of fathers (conditional on either the mother’s consent or by a court on child welfare grounds) are factors in communicating to everyone the low expectations by society of fathers’ involvement with their children compared to expectations on mothers. These affect how all fathers are viewed – but expectations of involvement of fathers without PR tend to be particularly low. These expectations increase the likelihood of fathers drifting away from their responsibilities, failing to take their responsibilities seriously, or giving up when the going gets tough. The child support system encounters the consequences of this culture.

Such low expectations of father involvement also legitimate the current failure of many agencies adequately and systematically to support responsible paternal involvement.

Potential problems in proposed system

The new system could be an opportunity to make a clear new cultural statement about fatherhood, with higher expectations on their involvement – akin to the expectation on mothers – in a way that would make it less acceptable for fathers to drift out of their children’s lives. But this would not necessarily happen. If the child support narrative remained negative (as now), and was focused purely on holding errant fathers to account for their responsibilities, then a new and motivating understanding of the importance of positive involvement of fathers in their children’s lives would not be achieved. Family services would continue to collude with the drift of fathers away from their responsibilities and fail to support their positive involvement.

4.4 Equality between women and men and their human rights

Problems in current system

The legal difference in the status of mothers and fathers could potentially be challengeable on human rights grounds – this needs to be checked as the new proposal is considered. An advisory group to the DCA in 2002 considered that the current system, where it is possible to revoke PR from an unmarried father but not from an unmarried mother or married parents, might be challengeable under human rights law.

The denial of registration to unmarried fathers considered a risk to the child, but not to mothers or married fathers who are considered a risk to the child, seems very difficult to justify on child welfare grounds. Either denial of registration is effective, so not using it on mothers and married fathers is against the interests of the child; or it is not effective, so applying it to unmarried fathers adds nothing to the safety of the child. The only circumstance in which differential treatment would be justifiable is if unmarried fathers were viewed as inherently more dangerous than other parents, a position that could also be challengeable under human rights law.

4.5 Children’s rights

Any increased risk to children from either system is a child’s rights issue – these factors are covered above. This section of our briefing is about the child’s ‘right to know’ both natural parents, as laid out in Article 7 of the UN Declaration on the Rights of the Child, to which Britain is a signatory.

Problems in current system

Other than when donor insemination is involved, the record of parentage is the birth certificate. If the father is not on the certificate, the right of the child to know both parents may be undermined. A system that does not seek to maximize registration of fathers on birth certificates may, therefore, be seen to be in breach of the UN Convention. This needs to be analysed.

4.6 Practicability

Problems in current system

The current legal framework for PR – how PR is acquired by fathers, how PR affects their legal status, how agencies should engage with those fathers who have PR and those who don’t – is poorly understood, by both parents and services. This impacts negatively on how service providers engage with fathers whom they know (or think) do not have PR.

Potential problems in proposed system

Any system of birth registration that pays greater attention to encouraging both parents to register will require an increase in correspondence between the registry and families where parents are at loggerheads. In Australia this has happened. One scenario (of many) illustrates the point:
• A mother does not register the father’s name.
• The registrar must write a letter to ask her why.
• She provides the father’s name.
• The father then needs to be contacted, since he must consent to be registered.
• He refuses consent.
• The registrar must inform the mother of this.
• The mother could decide to insist on his registration, using legal means.
• The registrar would have to inform the father of this, before the case is handed to the court.

In this scenario, four letters are sent that would not have been sent in the current system. But Registrars would not have to take on an investigative or quasi-judicial role.

It is not clear whether the courts would see increased demand, or just a change of legal basis for their judgments.

The problems of lack of understanding of PR by parents and professionals would not automatically be resolved in the new system.

5. Conclusion

We hope these notes contribute something to the debate and we would be pleased to hear the thoughts and views of our partners on these matters, as we work out our formal response to the White Paper.