Earlier this month in North Wales, a mother died just after giving birth. She was not married to the father, though he was declared in the maternity records as the father. Afterwards, the father was not allowed to take the baby home until social workers had visited and gone to a court to apply to a magistrate to have him recognised as the baby’s father. He was not allowed to sign the birth certificate as the father – only as someone who witnessed the birth.

How can this happen?

In UK law, a father can only be a father if the mother approves him. She can do this in two ways – marry him or invite him to sign the birth certificate. If neither of these happens, he is not the father until the family court approves him. A man has to be vetted by the mother or the state before he is allowed to be a father.

A few years ago, the Government wanted to amend this principle of law, by creating an expectation of joint birth registration. Where this didn’t happen, mothers would be asked to name the child’s father on the birth certificate, unless there were good reasons not to do so; and fathers would have the right to request that their name be added to the birth certificate. (If there was any dispute over paternity, the mother would need to confirm if he was the father or name the man who was.)

During a long period of research and drafting by civil servants, the proposals were strongly opposed by a lobby of children’s and women’s organisations on the grounds that any change would be an invitation to violent men to abuse their partners. The civil servants undertook their own research and were not persuaded that there was evidence for this assertion. Indeed, they found the opposite – children are better off when expectations on unmarried fathers are higher and more positive.

The proposed change was included in the Welfare Reform Bill – the most significant policy change proposed by the last Government in relation to fatherhood because it touched on the legal foundations.

But whilst it was incorporated into the Welfare Reform Act, the incoming coalition Government decided not to enact this aspect of the new legislation. So it remains the case that fatherhood is in effect ‘in the gift’ of mothers – to be conferred either by her decision to marry the man in question, or have him sign the birth certificate. If neither happens, fathers have no automatic legal status.

In the North Wales case, because the baby’s mother – his only legally recognised parent – had died, the child protection system was invoked and applied to the grieving father. It was as if he were a total stranger requesting to take the baby away – something to which the maternity unit staff could clearly not agree. There was nothing illogical about what happened there – it was a coherent expression of the law.

The magistrate acted quickly, despite the complications of it being a weekend. He could see that it was absurd and cruel to consider this a child protection issue, and after a gruelling eight-hour wait during which a compassionate, committed midwife stayed with the father at the hospital, granted him a temporary residence order so that he could go home with his baby. Within a week the court had granted him Parental Responsibility.

The midwife who sat with the father through this ordeal has vowed not to let this situation pass without challenge, and we at the Fatherhood Institute are committed to taking up the issue.

What should happen?

The Institute remains of the view that joint birth registration must happen, with the scenario foreseen that it may only be an unmarried father who is signing the birth certificate. To prepare for this scenario, one possible change could be to ensure that maternity records, as a matter of course, declare who an unmarried father is – and that where necessary, this record be deemed proof of paternity so that the father is able to sign the birth certificate. The Department of Health could specify when and how the name and contact details of the father, married or unmarried, should be entered on the mother’s care plan. This would require administrative changes in some settings.

The fundamental issue comes down to this: are fathers to be considered by default in law as an alien and a potential threat to their children until vetted, or treated in the same way that mothers are – a parent and a benefit to their children until there is strong evidence to suggest otherwise?

This article was written by FI head of communications Jeremy Davies and Duncan Fisher OBE, co-founder of the FI and Dad Info. It also appears on Duncan’s blog here.