Procedures for The Determination of Paternity and on The Law on Parental Responsibility for Unmarried Fathers A Lord Chancellor's Department Consultation Paper This consultation exercise seeks views on possible changes to the law on the determination of paternity through the courts, and on the acquisition of parental responsibility by unmarried fathers. We welcome your views on these proposals, whether or not your response is confined to the specific questions raised in the paper. If you wish to comment on these proposals, please send your reply, stating your name and address and indicating whether you are responding as an individual or as the representative of an organisation, by Tuesday 5 May 1998, to: Miss B M Griffith-Williams Family Policy Division Lord Chancellor's Department, Selborne House, 54 Victoria Street, London SW1E 6QW. Your comments, clearly marked for the attention of Miss Griffith-Williams, may also be e- mailed to: enquiries.lcdhq@gtnet.gov.uk Paper copies of the consultation paper are available from the Family Policy Division at the above address (tel: 0171-210 8879; fax:0171-210 8740). Please feel free to photocopy the paper yourself if that is more convenient for you. We may in due course be asked to make the results of the consultation public. Any request to treat all or part of a response in confidence will, of course, be respected. If no such request is made, we shall assume that your response is not intended to be confidential. ________________________________________________________________________ SUMMARY Paternity Parental responsibility for unmarried fathers INTRODUCTION Scope and purpose of review PART I: PATERNITY The Family Law Act 1986 Questions The Child Support Act 1991 Questions Registration of births outside marriage Question Presumption of paternity Questions Scientific tests Questions Summary of questions on paternity PART II: PARENTAL RESPONSIBILITY FOR UNMARRIED FATHERS The historical background The Children Act 1989 The effect of parental responsibility Developments since the implementation of the Children Act 1989 Options for the future The European Convention on Human Rights Questions on parental responsibility ________________________________________________________________________ SUMMARY Paternity The Lord Chancellor's Department is seeking views on possible changes to the law on the determination of paternity through the courts. At present there are two separate procedures, under the law of England and Wales, for obtaining a determination of paternity through the courts. Someone who wants to establish that he is the child of a particular person may apply for a declaration of parentage under section 56 of the Family Law Act 1986. This declaration is valid for all purposes, e.g. to amend a birth certificate, to establish a right to inherit property, or to acquire nationality or citizenship. There are special arrangements for obtaining a declaration of paternity when the Child Support Agency is considering a maintenance assessment for an alleged parent who denies parentage. The Child Support Act 1991 introduced a simplified procedure for the person with care of a child (usually the mother), or the Secretary of State, to obtain a declaration of paternity which is valid for child support purposes only. The consultation paper invites views as to whether it is possible to establish a single procedure for obtaining a declaration of paternity from the court, which would be valid for all purposes. When a dispute about paternity arises in the course of any civil proceedings, the court may make a direction for blood tests under section 20 of the Family Law Reform Act 1969. At present the court may order scientific tests only on blood samples, not on non-invasive bodily samples such as saliva or cranial hair. There is existing legislative provision for the court to order testing of non-invasive samples, but it has not yet been brought into force. The consultation paper asks whether the courts now be able to order testing of non- invasive bodily samples as well as blood. Parental responsibility for unmarried fathers The Children Act 1989 introduced a new concept of ‘parental responsibility', which it defines as 'all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property'. The Act confers parental responsibility automatically on all mothers, married or unmarried, and on married fathers. It also introduced a new procedure for an unmarried father to acquire parental responsibility by making an agreement with the mother, which must be properly witnessed and registered with the court. In cases where the parents are unable to reach agreement, the father may apply to the court for a parental responsibility order. The Act did not automatically confer parental responsibility on unmarried fathers because of a perceived need to protect vulnerable unmarried mothers, especially those whose children had been born as a result of violent or coercive relationships. In 1996 there were 649,485 births registered in England and Wales, of which 232,663 (35.8%) were outside marriage. The father's details were included on the birth certificate for 181,647 (78%) of births outside marriage. The father and mother were living at the same address in 74.4% of these joint registrations, and in 58% of all births outside marriage. But in the same year, 1996, the courts made only 5,587 parental responsibility orders, and only around 3,000 parental responsibility agreements are registered each year. It appears that many people simply assume that an unmarried father has parental responsibility, especially if the mother and father have jointly registered the child's birth. The possession of parental responsibility probably has little effect on a father's role in the day to day upbringing of his child, at least while the parents are living together or co- operating in their arrangements for the children. For the majority of unmarried fathers, the lack of parental responsibility does not become a problem until the relationship with the mother breaks down, or until the mother becomes unable to exercise her parental responsibility, for example because of accident or illness. Nevertheless, there are some circumstances in which a father without parental responsibility will be at a disadvantage, for example if the child is put up for adoption. Parental responsibility may be important to people as a symbol of the legal status of parenthood, and it may be a particular source of grievance for some unmarried fathers that they may be forced to support their children financially, whether or not they have acquired parental responsibility under the Children Act. The consultation paper discusses two main questions on parental responsibility. Is it right in principle to make it easier for unmarried fathers to acquire parental responsibility for their children, subject to any necessary safeguards? Should automatic parental responsibility be limited to certain categories of unmarried fathers, such as a father who registers the child's birth jointly with the mother? INTRODUCTION Scope and purpose of review 1. The Lord Chancellor's Department is seeking views on possible changes to the law on the determination of paternity through the courts, and on the acquisition of parental responsibility by unmarried fathers. The purpose of the review is to ensure, so far as possible, that the law in these areas is consistent with other legislation affecting the status of parents, and that it adequately reflects modern social attitudes and conditions. This falls within the wider context of the Government's commitment, set out in its pre-election manifesto, to uphold family life as the most secure means of bringing up children. The Government believes, in particular, that all parents should be encouraged to exercise responsibility for their children. 2. Part I of this consultation paper, on paternity, considers two main issues in relation to the determination of paternity through the courts: a) whether it is feasible and appropriate to establish a single procedure for determining paternity, and b) whether the common law presumption that a man married to a child's mother at the time of birth is that child's father should be put on a statutory footing. 3. Part I of the paper also proposes some amendments to the law on court-directed scientific testing to establish paternity, which are designed to bring the system into line with modern scientific practice. 4. Part II, on parental responsibility, considers whether the law should be amended so that it would be easier for unmarried fathers to acquire parental responsibility for their children. 5. Except as otherwise indicated, this paper describes the present state of the law only as it applies to England and Wales, not to Scotland or Northern Ireland. The law in Scotland, which differs in a number of significant respects from that in England and Wales, is mentioned only for purposes of comparison. The proposals for legislative change outlined in this paper apply only to England and Wales. PART I: PATERNITY 6. A determination of paternity may be needed for a variety of reasons, including those listed below. a) A person may need to prove that he or she is a child of a specified person, for example in order to amend his birth certificate, to establish his or her right to inherit property, or to acquire nationality or citizenship (which may be relevant for immigration purposes). b) A father may need to prove his relationship with his child, for example in order to seek a parental responsibility order, or an order for residence or contact, under the Children Act 1989. c) The child's mother, or the Child Support Agency, may need to establish paternity so that the father can be required to contribute to the child's maintenance. 7. At present there is no single procedure, covering all these circumstances, for obtaining a determination of parentage from the court. Paternity may be established in one of three ways: a) by a declaration of parentage under section 56 of the Family Law Act 1986, which is binding for all purposes but is available only on the application of the 'child' in question; or b) by a declaration under section 27 of the Child Support Act 1991, which is effective only for child support purposes and is available on the application of the person with care of the child or the Secretary of State; or c) by a direction from the court for blood tests under section 20 of the Family Law Reform Act 1969; this is only available when the court has to resolve a dispute about paternity in the course of existing civil proceedings, and no freestanding application can be made under section 20. 8. During the passage of the Child Support Act 1995 through Parliament two amendments on paternity were tabled. The intended effect of these was that: a) a declaration of paternity made under section 27 of the Child Support Act 1991 would be valid for all other proceedings relating to the child in question; and b) when an alleged parent was married to the child's mother between the child's conception and birth, a maintenance assessment could be made even though the alleged parent denied paternity. (This would have given statutory effect to the existing common law presumption that a child born during a marriage is the child of the parties to the marriage, and brought the position in England and Wales into line with that in Scotland.) 9. Both of these proposals, if implemented, would have had implications for other areas of the law. It was the Government's view that these implications needed more detailed consideration, and the amendments were accordingly withdrawn on the understanding that the Government would consult publicly to establish whether there was a consensus for the changes proposed. The Family Law Act 1986 10. Section 56 of the Family Law Act 1986 enables any person to seek a court declaration either: a) that a named person is or was his parent, or b) that he is legitimate, or c) that he has or has not become a legitimated person. 11. Only the 'child' in question (who may in fact be an adult) is entitled to apply for a declaration under section 56. (In practice, when the child is a minor, it is most often the mother who initiates the proceedings.) Both of the child's parents, if they are still alive, must be joined as respondents to the proceedings. 12. A declaration under section 56 is binding on the Crown and on all other persons; in other words it is binding for any purpose. The declaration is binding in time; ie without limit of time in the UK whether for the purpose of legal proceedings or for any other purpose. Section 56 makes no provision for a declaration from the court that a named person is not the child's parent. 13. On an application for a declaration under section 56, the court has to make the declaration where the truth of the proposition is proved to its satisfaction, unless to do so would be contrary to public policy. This embodies previous case law to the effect that the court would not make a bare declaration unless the evidence in support of it could be properly investigated and verified. 14. An application under section 56 may be made in the High Court or a county court. The 1986 Act includes as a safeguard a provision that the Attorney General may intervene in an application for a declaration under section 56. This is to ensure that in each case there is a proper ‘contradictor' to test the evidence, for the protection of third parties and the public. To enable this intervention, the Family Proceedings Rules require the petitioner to give notice of declaration proceedings to the Attorney General one month before they are filed. The role of the Attorney General is primarily to minimise the risk of success of unopposed or collusive proceedings brought fraudulently to obtain a declaration, and to express a view on the requirements of public policy in a particular case. 15. It has been suggested that the use of DNA testing, which can produce results to a very high degree of certainty, has reduced the need for intervention by the Attorney General. There are, however, still cases where DNA testing will not be possible, for example where the putative father has died. This raises the question whether there should be a separate procedure, with no role for the Attorney General, if apparently conclusive DNA evidence is adduced at the time of presentation of the petition. 16. Even in cases where the evidence of paternity is clear, issues of public policy may still arise. Section 59(1) of the 1986 Act permits the court, if it thinks there are matters needing to be fully argued, to seek assistance from the Attorney General as amicus curiae, even if the Attorney has decided not to intervene. The court may, at any stage of the proceedings, of its own motion or on application by any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney General. Thus a further issue is whether it would be appropriate to remove the requirement in the Family Proceedings Rules of automatic service on the Attorney General, but to leave section 59 of the Act in place as a reminder that the case can be referred to the Attorney General if necessary. 17. The court has jurisdiction to deal with an application under section 56 only if the applicant is domiciled in England & Wales on the date of the application or has been habitually resident in England & Wales throughout the period of one year ending with that date. 18. When a declaration of paternity is made under the Family Law Act 1986, the court notifies the Registrar General of the declaration. Under section 14A of the Births and Deaths Registration Act 1953 the Registrar General has discretion to authorise the re-registration of the birth on the basis of the declaration; neither parent signs the new registration. The original birth registration is annotated to show that the birth has been re-registered. 19. It is important, in these circumstances, that there are no disputes as to the court's findings under the 1986 Act. In practice, the Registrar General writes to the person named in the application for the declaration giving the details to be entered in the new birth registration, and allowing 28 days for a response before authorising the re-registration. This enables any queries about information contained in the declaration to be raised with the court before a new birth registration takes place. Questions a) Do the high standard of proof required and the special safeguards provided by the 1986 Act continue to serve a useful purpose in preventing fraudulent or collusive applications from succeeding, and in protecting the public interest? b) Who should be entitled to apply to the court for a declaration of paternity (the child, the mother, the alleged father, anyone else)? c) Should there be a separate procedure, with no role for the Attorney General, in cases where apparently conclusive DNA evidence is adduced at the time of presentation of the petition? d) Should the rule requiring automatic service on the Attorney General be removed, on the basis that cases could still be referred to the Attorney when there was a specific need to do so? e) Do we need a new procedure for a declaration by the court that a named person is not the parent of a particular child? The Child Support Act 1991 20. Section 27 of the Child Support Act 1991 introduced a separate, simplified procedure for obtaining a parentage declaration where a maintenance assessment is under consideration, or is already in force, for an alleged parent who denies parentage, and where a child support officer to whom the case is referred is not satisfied that the case falls within one of those set out in section 26(2) of the Act. Either the Secretary of State or the person with care of the child may apply to the court for a declaration, which has effect only for the purposes child support and maintenance. 21. An application under section 27 must be made to a family proceedings court. The court may (either on the application of a party or of its own motion) transfer the proceedings to a county court if it considers it in the interests of the child to do so. 22. The standard of proof required for a declaration to be made under section 27 is the normal civil test of the balance of probabilities. There is no provision for intervention by the Attorney General. 23. For child support purposes, a declaration of parentage means that the absent parent is liable to pay maintenance even if he continues to dispute the assertion that he is the child's father. When paternity is established and there is no court order, maintenance liability is back-dated to the date the maintenance enquiry form was issued to the alleged parent. If there is a court order, liability begins two days after the maintenance assessment is made (to allow time for the notification to reach the court). 24. The proposed amendment to section 27 was intended to extend the validity of a declaration of parentage under section 27 to any proceedings involving the child in question. This would mean that a man whose paternity had been established for child support purposes could rely on the court's declaration in any subsequent disputes about, for example, his standing to apply for a parental responsibility order, or for residence or contact with the child. The child himself could use a section 27 declaration to establish his parentage for purposes such as nationality or inheritance, or to amend his birth certificate. In cases where paternity had not previously been determined in the context of child support, the child would still need to apply for a declaration under the 1986 Act, and the father could ask the court to make a direction for blood testing in the course of proceedings under the Children Act 1989. 25. The possibility of extending the validity of declarations under section 27 raises further considerations as to the scope for introducing a single procedure for the determination of parentage through the courts, which would be valid for all purposes and available on the application of either the child or a parent or alleged parent of the child. Since this would inevitably involve dispensing with the special safeguards provided by the 1986 Act, the underlying issue is whether it is appropriate for a declaration obtained under a simplified procedure to be accepted as proof of paternity in relation to matters such as inheritance rights, nationality and citizenship. Another issue for consideration is whether there should be special provision, as part of any new procedure, for a mother's views to be taken into account if she did not want her child's paternity to be determined, for example where the child had been conceived as a result of rape or where the putative father had a history of violence against the mother or other children. Questions a) Should a declaration of parentage under section 27 of the Child Support Act 1991 be valid for all other proceedings? b) If so, could a single procedure be introduced for obtaining a declaration of parentage that would be valid in all circumstances? c) Would it be satisfactory for a single procedure to be based on a lower standard of proof than what is currently required under the Family Law Act 1986? d) Should there be special provision, as part of any new procedure, for a mother's views to be taken into account if she did not want her child's paternity to be determined, for example where the child had been conceived as a result of rape, or where the putative father had a history of violence against the mother or other children? Registration of births outside marriage 26. When a man is recorded in the birth register as the father of a child, a certified copy of the registration is accepted as prima facie evidence of paternity in most matters of inheritance, nationality and citizenship. 27. When the birth of a child outside marriage is registered, the father's identity does not appear in the register unless he attends the register office and signs the register jointly with the mother, or if one parent registers the birth alone and produces acceptable documentary evidence of paternity. A birth must be registered within 6 weeks, but may be re-registered at a later date with the father's particulars if they were not originally included. 28. The following may be accepted as proof of paternity for the purpose of registering, or re-registering, a birth outside marriage: a) a statutory declaration by one parent accepting the man's paternity (when the other parent signs the birth register); or b) a parental responsibility agreement made by the parents under the Children Act 1989; or c) a parental responsibility order made by the court under the Children Act 1989; or d) a court order for maintenance. 29. One unintended effect of the child support legislation has been to make it more difficult for an unmarried father's particulars to be entered in the birth register when the parents are not living together and are unwilling to co-operate in the registration of the birth. The most common solution in such cases used to be for one parent to produce a court order for maintenance, but maintenance orders have in most cases been replaced by child support maintenance assessments, which are not acceptable for registration purposes. There are no plans to change this, since it is doubtful whether such assessments provide sufficient evidence of paternity to support the entry of the father's particulars where the application is made solely by the mother. 30. Similarly, a declaration of paternity under section 27 of the Child Support Act 1991 is not at present acceptable for birth registration purposes. It would become so if the law were changed to make such declarations valid for all purposes. Question a) If it is not considered appropriate for a declaration under section 27 to be valid for all proceedings, should it at least be acceptable as proof of paternity for the purposes of registering a birth outside marriage? Presumption of paternity 31. Under the current law in England and Wales there is a common law presumption that the child of a married woman is the child of her husband. This can be rebutted by the mother's statement at registration. 32. In Scotland there is a statutory provision in relation to paternity, under section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986. A man is presumed to be the father of a child if he was married to the mother of the child at any time in the period beginning with the conception and ending with the birth of the child. Where the above does not apply, the man is presumed to be the father of the child if both he and the child's mother have acknowledged that he is the father and he has been registered as such under section 13 or section 44 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 or any corresponding legislation applying elsewhere in the United Kingdom. These presumptions may be rebutted by proof on a balance of probabilities. 33. Section 26(2) of the Child Support Act 1991 lists the cases where the Child Support Agency may make a maintenance assessment against an alleged parent, even if he denies that he is one of the child's parents. These include cases where the court has made a declaration of paternity, either under the 1991 Act or under the Family Law Act 1986. In the case of a child who is habitually resident in Scotland, section 26 also enables the Child Support Agency to proceed in cases where one of the presumptions set out in section 5(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 applies. 34. Section 26 does not, however, apply these presumptions to cases in England and Wales. If the mother's husband or an unmarried father whose name appears on the birth register denies paternity, the Agency therefore cannot make a maintenance assessment until the issue of paternity has been resolved. 35. It has been suggested that section 26(2) should be amended to bring the position in England and Wales into line with that in Scotland. That would enable the Agency to apply the same system in both jurisdictions, and would streamline the child support maintenance process. Questions a) Should section 26(2) of the Child Support Act 1991 be amended to enable the Child Support Agency in England and Wales to make a maintenance assessment against an alleged father who denies paternity, if he was married to the mother of the child at the time of the child's birth, or at the time of the child's conception, or if his name appears on the birth register? b) Should there be a general statutory presumption of paternity in these circumstances, along the lines of section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986? c) How would such a presumption be rebuttable? Scientific tests 36. Section 20 of the Family Law Reform Act 1969 enables the court to direct the use of blood tests in order to resolve a dispute about paternity which has arisen in the course of civil proceedings. A man may, for example, wish to be established in law as his child's father in order to pursue an application for a parental responsibility or contact order. Section 23 of the Family Law Reform Act 1987, which has not yet been brought into force, would enable the testing to be carried out on non-invasive bodily samples (such as cranial hair or saliva) as an alternative to blood. This would enable parents and alleged parents who cannot undergo blood testing for religious or medical reasons to take advantage of the tests. It would also bring the courts into line with the voluntary DNA testing scheme carried out on behalf of the Child Support Agency. 37. Blood testing under the 1969 Act is carried out by authorised testers who are appointed by the Lord Chancellor under section 22 of the Act. 38. Subject to the views of consultees, the Lord Chancellor's Department now proposes to implement section 23 of the 1987 Act. In addition, it is proposed to amend the 1969 Act so that the present system of approval of individual testers would be replaced by a new system of accreditation of laboratories. It would then be for each accredited laboratory to determine which of its staff were qualified to carry out paternity tests. Questions a) Should section 23 of the Family Law Reform Act 1987 now be implemented, so that tests directed by the courts could be carried out on non-invasive bodily samples as well as blood? b) What would be the advantages or disadvantages of changing the present system so that court-directed tests have to be carried out by accredited laboratories rather than individually approved testers? Summary of questions on paternity a) Do the high standard of proof required and the special safeguards provided by the 1986 Act continue to serve a useful purpose in preventing fraudulent or collusive applications from succeeding, and in protecting the public interest? b) Who should be entitled to apply to the court for a declaration of paternity (the child, the mother, the alleged father, the Secretary of State, anyone else)? c) Should there be a separate procedure, with no role for the Attorney General, in cases where apparently conclusive DNA evidence is adduced at the time of presentation of the petition? d) Should the rule requiring automatic service on the Attorney General be removed, on the basis that cases could still be referred to the Attorney when there was a specific need to do so? e) Do we need a new procedure for a declaration by the court that a named person is not the parent of a particular child? f) Should a declaration of parentage under section 27 of the Child Support Act 1991 be valid for all other proceedings? g) If so, could a single procedure be introduced for obtaining a declaration of parentage that would be valid in all circumstances? h) Would it be satisfactory for a single procedure to be based on a lower standard of proof than what is currently required under the Family Law Act 1986? i) Should there be special provision, as part of any new procedure, for a mother's views to be taken into account if she did not want her child's paternity to be determined, for example where the child had been conceived as a result of rape, or where the putative father had a history of violence against the mother or other children? j) If it is not considered appropriate for a declaration under section 27 to be valid for all proceedings, should it at least be acceptable as proof of paternity for the purposes of registering a birth outside marriage? k) Should section 26(2) of the Child Support Act 1991 be amended to enable the Child Support Agency in England and Wales to make a maintenance assessment against an alleged father who denies paternity, if he was married to the mother of the child at the time of the child's birth, or at the time of the child's conception, or if his name appears on the birth register? l) Should there be a general statutory presumption of paternity in these circumstances, along the lines of section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986? m) How would such a presumption be rebuttable? n) Should section 23 of the Family Law Reform Act 1987 now be implemented, so that tests directed by the courts could be carried out on non-invasive bodily samples as well as blood? o) What would be the advantages or disadvantages of changing the present system so that court-directed tests have to be carried out by accredited laboratories rather than individually approved testers? PART II: PARENTAL RESPONSIBILITY FOR UNMARRIED FATHERS The historical background 39. In England and Wales, the law governing relationships between parents and children has been slow to recognise the parental status of unmarried fathers. This was in marked contrast to the position of married fathers. Authority over a legitimate child lay with the father alone, and it was not until the Guardianship Act 1973 that mothers had authority over children which they could exercise independently. 40. According to the common law, children born outside marriage had no legally recognised guardians, and neither the father nor the mother had a right to custody. That situation had begun to change by the late 19th century, when the courts developed a preference for giving custody of illegitimate children to the mother. Despite improvements to the status of illegitimate children under the Family Law Reform Act 1969, the Children Act 1975 still maintained the position that only the mother had parental ‘rights' over an illegitimate child. Under the Guardianship Act 1973, the mother had during her lifetime all rights exclusively and the father merely had a right to apply to the court for an order granting him custody or access. Following the recommendations in a report by the Law Commission, the Family Law Reform Act 1987 gave effect to the new principle that: ‘...references . . . to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father or mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time.' 41. Nevertheless, the 1987 Act continued to distinguish the legal relationship between a child and its mother or married father from that between a child and its unmarried father. The Children Act 1989 42. The Children Act 1989 rests on the belief that children are generally best looked after within the family, with both parents playing a full part and without resort to legal proceedings. For most purposes the Act makes no distinction between married and unmarried parents, and it seeks to encourage both parents to continue to share in their children's upbringing, even after separation or divorce. 43. The 1989 Act replaced the traditional approach to parents' ‘rights' with a new concept of ‘parental responsibility', which it defines as 'all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property'. The Act still falls short, however, of putting married and unmarried fathers on a completely equal footing. 44. Under section 2 of the Act married fathers and all mothers automatically have parental responsibility for their children. Section 4 introduces a new procedure for an unmarried father to acquire parental responsibility by making an agreement with the mother, which must be properly witnessed and registered with the court. In cases where the parents are unable to reach agreement, the father may apply to the court for a parental responsibility order. The majority of such applications are successful. Case law has suggested that the court will consider the degree of commitment which the father has shown towards the children, the degree of attachment between father and child and the reasons for the father applying for the order. (Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214 extensively followed since) 45. A parental responsibility order or agreement can be brought to an end by a court order on the application of any person with parental responsibility or, with the leave of the court, on the application of the child. There is no provision for the revocation of parental responsibility when it has been acquired automatically by the child's mother or her husband, but the court can in effect impose restrictions on the exercise of parental responsibility by limiting or prohibiting contact or through other provisions in a prohibited steps order. The effect of parental responsibility 46. The Children Act 1989 does not define parental responsibility in detail. In essence, the definition is more concerned with the status of parenthood than with specific rights or responsibilities. 47. In practical terms, the possession of parental responsibility probably has little effect on a father's role in the day to day upbringing of his child, at least while the parents are living together or co-operating in their arrangements for the children. In these circumstances, a father's authority in matters such as the child's education or medical treatment is unlikely to be challenged. Indeed, it seems likely that for the majority of unmarried fathers, the lack of parental responsibility does not become a problem until the relationship with the mother breaks down, or until the mother becomes unable to exercise her parental responsibility, for example because of accident or illness. 48. Even after he has separated from the child's mother (or if he has never had a stable relationship with her), an unmarried father does not need to have parental responsibility in order to apply for residence or contact under section 8 of the Children Act. Indeed, the award of a residence order will always be accompanied by a parental responsibility order if the applicant does not already have parental responsibility for the child in question. It needs also to be borne in mind that parental responsibility does not carry a general right to be consulted about a child's upbringing. When a child's parents are living apart, therefore, it is the parent with whom the child resides who normally carries the main responsibility for day to day decisions. 49. Nevertheless, there are some exceptional circumstances in which the consent of everyone with parental responsibility is required, so that a father without parental responsibility will be at a disadvantage. The main points are: a) that the consent of an unmarried father who does not have parental responsibility for the child is not required before the court can make an adoption order; and b) that when there is a residence order in force, the child's surname may not be changed, and the child may not be removed from the UK for more than a limited period, without either the consent of everyone who has parental responsibility for the child or the leave of the court. 50. Difficulties have also arisen when unmarried fathers without parental responsibility have applied for a child to be returned to the UK under the Hague Convention on the Civil Aspects of International Child Abduction. It is not clear in these cases whether there has been a breach of a ‘right of custody' within the meaning of the Convention. A parental responsibility agreement or order is, on the other hand, considered sufficient to establish a right of custody. Developments since the implementation of the Children Act 1989 51. Discrimination between married and unmarried fathers in respect of parental responsibility is increasingly seen as unacceptable, in view of the large numbers of children who are now born to unmarried parents, many of whom are likely to be in stable relationships. It is clearly impossible to assume that most unmarried fathers are irresponsible or uninterested in their children, and do not deserve a legal role as parents. 52. In 1996 there were 649,485 births registered in England and Wales, of which 232,663 (35.8%) were outside marriage. Of these births outside marriage, 181,647 (78%) were registered with the father's details. Of the births outside marriage which included fathers' details, 135,282 (58% of births outside marriage, 74.4% of joint registrations) showed the mother and father living at the same address. 53. By contrast with these figures, the number of parental responsibility agreements and orders remains surprisingly small. In 1996 the courts made only 5,587 parental responsibility orders, and the number of parental responsibility agreements registered each year with the Principal Registry of the Family Division is around 3,000. The low take-up probably results from public ignorance of the law. Indeed, there is evidence that many people simply assume that an unmarried father has parental responsibility, especially if the mother and father have jointly registered the child's birth. 54. The major legislative development affecting parents' relations with their children, since the implementation of the Children Act 1989, is the Child Support Act 1991 (now amended by the Child Support Act 1995). The l991 Act embodies a legal obligation for all parents, whether married or unmarried, to contribute financially to the support of their children: ‘each parent of a qualifying child is responsible for supporting him'. (A ‘qualifying child' is a dependent child who is living apart from one or both of his parents.) The legislation introduced a completely new mechanism for the enforcement of this obligation, through the Child Support Agency. It is a particular source of grievance for some unmarried fathers that they may be forced to support their children financially, whether or not they have acquired parental responsibility under the Children Act. 55. This raises a fundamental issue as to whether an unmarried father needs to be accepted as a 'meritorious' parent before being able to acquire parental responsibility for his children. There is no such requirement for mothers, or for married fathers, who in practice may or not be 'responsible' parents. Their exercise of parental responsibility can, if necessary, be controlled by the courts through the use of section 8 orders. Options for the future 56. One of the difficulties about legislating for the rights or responsibilities of unmarried parents is that they are not a homogeneous grouping. The very significant proportion of births outside marriage which are registered by both parents living at the same address seems to reflect the growing acceptance of long-term cohabitation as a preliminary or alternative to marriage. Many such relationships must be at least as stable as marriage. At the other end of the spectrum, however, there are still children who (despite the widespread availability of contraception and abortion) are born as a result of transient or coercive relationships. The underlying aim of the present law on parental responsibility is to protect women who are ‘victims' of such circumstances by allowing the mother, in effect, to veto parental responsibility for an unmarried father unless he can persuade the court to override her objections. 57. The most radical option for the future would be to change the law to create an automatic link between biological parentage and parental responsibility, so that all fathers would have parental responsibility for their children, whatever their marital status at the time of the child's birth, without the need for any special registration procedures or for any court order. (There are, however, no plans to alter the Human Fertilisation and Embryology Act 1990 in relation to those who donate sperm or eggs.) The question of the father's 'merits' would not arise, but there would still need to be some provision for challenge by the mother, and perhaps by others, on the grounds that a man claiming parental responsibility was not in fact the father of the child concerned. It is possible that such a provision might lead to an increase in the number of cases of disputed paternity. 58. It would be open to consideration whether there should also be limited circumstances in which the mother's wishes should be allowed to override the father's automatic right to parental responsibility, even when his paternity was not in dispute. That might apply, for example, in cases where the child had been conceived as a result of rape, or where the father had a history of violence against the mother or other children. The need for exceptions to the normal rule would need to be carefully considered in the light of legal remedies already available, including those against domestic violence under Part IV of the Family Law Act 1996 as well as orders under section 8 of the Children Act 1989. 59. Another possible approach, falling short of automatic parental responsibility for all fathers, would be to limit the automatic conferment of parental responsibility to a defined category or categories of unmarried fathers, retaining the existing provisions for court orders and parental responsibility agreements for those who did not qualify automatically. The most obvious category would be those unmarried fathers who sign the birth register jointly with the mother. There would be the practical advantage that the birth certificate would provide proof of the father's status. In addition, joint registration could probably be assumed to imply the mother's agreement, and to demonstrate an appropriate degree of commitment to the child. It is open to question whether the same would apply in cases where the birth register is altered after the initial entry. 60. A further point for consideration is the scope for coercion by violent or abusive fathers, and whether vulnerable mothers would need the protection of a special provision for the revocation of parental responsibility acquired in this way. 61. Other categories of unmarried fathers who might be considered as candidates for automatic parental responsibility are those who are living with the mother at the time of the child's birth (whether or not they signed the register), and those in respect of whom the court has made a declaration of parentage. A link between parental responsibility and a child maintenance order made by the Child Support Agency is also a possibility, but would be more controversial because it might deter mothers from applying to the CSA. The practical implications of any of these options which would probably require some form of registration process, would, in any event, need careful consideration. The European Convention on Human Rights 62. The Government has considered the ECHR implications of the issues within the scope of this paper, in particular the human rights implications of the discussion relating to unmarried fathers and parental responsibility. The Government's view is that the current law which does not give parental responsibility automatically to unmarried fathers on the birth of the child complies with Articles 8 and 14 of the Convention. The wide range of types of relationship outside marriage means that the interests of the child and mother have to be protected. The law gives this protection while still permitting the unmarried father to acquire parental responsibility by agreement or court order. Nevertheless, it is not easy to find a rule of law which strikes the right balance in this respect between the interests of the unmarried father, the mother and the child. The current law was introduced following a great deal of consultation. It is very important that consultees should offer their views as to what rule would strike the right balance between the competing interests for the future. When consultees are responding to the questions raised, it would be helpful if they could address this point. Questions on parental responsibility a) Is it right in principle to make it easier for unmarried fathers to acquire parental responsibility for their children, subject to any necessary safeguards? b) Should automatic parental responsibility be limited to certain categories of unmarried fathers, such as a father who was living with the mother at the time of the child's birth, or a father who registers the child's birth jointly with the mother, or a father in respect of whom the court has made a declaration of parentage, or a father who is the subject of a child maintenance assessment? c) What would be the consequences of linking parental responsibility with birth registration? Would it, for example, have the perverse effect of discouraging unmarried fathers from identifying themselves at registration, or even reducing the rate of birth registration in general? d) What would be the practicalities of linking parental responsibility to cohabitation with the mother at the time of the child's birth? What proof of address would be required, and how could it be checked? e) Should parental responsibility be conferred automatically on all unmarried fathers? f) If so, are there any circumstances in which the mother's objection should override the assumption that the father had parental responsibility? g) What would be the practical implications of conferring parental responsibility automatically on all unmarried fathers, without the need for formal agreements or court orders? h) Would it lead to an increase in the number of cases of disputed paternity? i) Would there be a need for some form of register? j) If parental responsibility were to be conferred automatically on unmarried fathers, should it be revocable by court order? k) If so, what should be the criteria to be adopted by the court? l) If it is not considered desirable or practicable to extend parental responsibility to all unmarried fathers (or to limited categories such as those identified above), is there scope for some more limited change to the present system? For example, should there be a public information campaign to encourage unmarried parents to make parental responsibility agreements, or at least to ensure they understand their legal position?