A father who is married to the child’s mother at the time of the child birth automatically acquires parental responsibility. As of 1 December 2003 an unmarried father acquires parental responsibility if named on his child’s birth certificate (1), parental responsibility being acquired at the time of registration. It is not uncommon however for an unmarried father not to be named on a child’s birth certificate, particularly in circumstances where paternity was unclear or where the parents’ relationship had broken down by the time of the child’s birth. A question frequently arising for lawyers is by what mechanisms the father can acquire parental responsibility and how he can best arrange for his name to be added to the birth certificate at a later stage in the child’s life.
Re-Registration by Agreement
It is open to parents to re-register the birth by agreement, such a re-registration having the advantage of automatically inferring parental responsibility on the father (2). While this is by far the most straightforward approach, the evident difficulty is that a mother who was unwilling to include the father’s name on the birth certificate initially may be equally unwilling to engage in a re-registration.
Amendment by virtue of a Parental Responsibility Order
The Court must grant a father parental responsibility if making a Child Arrangements Order for the child to live with him (3). The Court must also consider the granting of a Parental Responsibility Order when making a Child Arrangements Order for the child to spend time with the father (4). A separate application can also be made for a Parental Responsibility Order as a stand alone application or in combination with an application for a Child Arrangements Order.
When considering whether to grant a father’s application for a Parental Responsibility Order (5) the Court must consider more than simply whether paternity is established. The case of Re H (Minors)(Local Authority: Parental Rights)(No3) (6), established that the Court should have regard to the father’s degree of attachment, degree of commitment and motivation in applying for the order.
Once in receipt of a Parental Responsibility Order a father may apply for the birth to be re-registered under s10A(1)(e) of the Births, Deaths and Registrations Act 1953, for which the Mother’s consent is not required. The father does not acquire parental responsibility by the re-registration of the birth in such a way, but of course this is of no concern given that this has already been granted by the Court under the order itself.
Application for Declaration of Parentage
As is apparent from the considerations for a Parental Responsibility Order set out above, the granting of such an order is far from guaranteed, particularly in circumstances where the recommendation is for no contact or where findings of abuse have been made. In such circumstances a father would be well advised to also make an application to the Court for a Declaration of Parentage under the Family Law Act 1986, s55A.
In considering such an application the Court simply considers whether paternity has been established, a far more straightforward test than the considerations arising in respect of an application for parental responsibility. In practice the Court will expect to see a DNA test confirming paternity or in the alternative for paternity to be accepted by both parents. It is open to the Court to refuse to hear an application for a Declaration of Parentage if this is in the child’s best interests (7), a conclusion that will be only rarely be reached given the recognition of the importance of paternity to the child’s sense of identity.
Once the declaration is made the Court will notify the Registrar General and the birth will be re-registered (8). Re-registration arising as a result of a Declaration of Parentage made by the Court will not confer parental responsibility on the father but nevertheless provides a mechanism for the father to ensure his name is included on the birth certificate, even when his commitment, attachment or motivations are questionable.
Application for Declaration of Parentage in Care Proceedings
The Court is frequently reluctant to entertain the making of a Parental Responsibility Order at a Final Hearing during care proceedings, particularly if the Local Authority plan is for care and placement orders. Such an Order would be made, only for it to later be extinguished by the making of an Adoption Order and the Father would have very limited ability to exercise the parental responsibility he would acquire by the making of such an order.
In these circumstances those representing a Father should also consider an application for a Declaration of Parentage under the Family Law Act s55A, paternity generally having been established during the course of the care proceedings. While the father will not acquire parental responsibility, it will offer some reassurance that the child’s birth certificate, which will remain with the child throughout their life, correctly identifies their paternity.