Annex C |
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Introduction
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Paternity
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Parental Responsibility
Introduction
1. This paper sets out the response of the Advisory Board on Family
Law to the Lord Chancellor’s Department’s consultation
document on paternity and parental responsibility (see paragraph
3.2-3.5).
2. The views of the Advisory Board on the issue of paternity are
set out below.
i. It would be sensible to adopt a single, simplified procedure
for all issues, given that DNA testing can now produce results to a very
high degree of certainty. If someone is unwilling to take a test, then
this provides the court with a very strong presumption.
ii. Section 23 of the Family Law Reform Act 1987 should now be
implemented, so that tests directed can be carried out on non-invasive
bodily samples as well as blood.
iii. It would also be sensible to move from a system of approved
individual teters to one of accredited laboratories. Stringent security
would be needed when non-invasive bodily samples were used, and this should
be part of the accreditation requirements.
iv. The child, the mother, the putative father and the Secretary
of State should be entitled to apply to the court as of right for a declaration
of paternity. Others should be able to make an application with leave,
if they have a proper interest in the issue. The definition of ‘proper
interest’ was considered in some detail. It would, for example, include
siblings who wanted to establish a right to inheritance, and other family
members such s grandchildren. It should not include merely public interest
(for example, newspapers making applications to establish the paternity
of public figures).
v. It should be possible to apply for a declaration from the court
that a named person is not the father of a particular child.
vi. The court should have the discretion to refuse to entertain
an application if the court considered it not to be in the interests of
the child (for example, if the child was happily settled in an adoptive
family), and to take into account the mother’s views if she does
not want the child’s paternity to be determined (for example, where
the child has been conceived as a result of rape, or where the putative
father has a history of violence against the mother or other children).
vii. Every level of court should have concurrent jurisdiction,
with the flexibility to transfer upwards and downwards.
viii A court’s decision to entertain an application would
not necessarily be binding for all time. The court could indicate that
it would be willing to hear a further application when a child was 18
(the applicant might, for example, wish to know about the risks of genetic
diseases from his/her natural father).
ix. The test for a court to decide whether an application for a
declaration of paternity is proved to its satisfaction should be the balance
of probabilities. The certainty provided by DNA testing made ny stricter
burden of proof unnecessary.
x. Section 26(2) of the Child Support Act 1991 should 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. A statutory presumption of paternity should be rebuttable
by DNA testing.
xi. The general point was made that there was likely to be an increasing
interest in establishing paternity because of developments in genetics.
It was therefore important to establish a procedure that would continue
to meet peoples’ needs for the foreseeable future.
3. The views of the Advisory Board on the issue of parental responsibility
are set out below.
i. The Advisory Board wanted to encourage more unmarried fathers
to acquire parental responsibility, but did not consider it should be
conferred automatically.
ii. The signing of the birth register by both parents would be
an appropriate way for an unmarried father to acquire parental responsibility
by consent. It would in effect constitute a fomal commitment to family
life by the couple. It would also have the practical advantage that the
appearance of the father’s name on the birth certificate would provide
concrete proof that he had parental responsibility for the child in question.
iii. The Advisory Board were concerned about the lack of public
awareness of the significance of parental responsibility and ignorance
about the lack of any legal relationship with the child of an unmarried
father without a parental responsibility order or agreement. It should
be mandatory that, at the time of the registration of the birth of a child
where the parents are not married, the parent registering the birth is
made aware of the legal position and encouraged to address the issue of
parental resonsibility and whether the birth register should be signed
by both parents.
iv. In addition, the new system should be accompanied by a publicity
campaign, preferably to be repeated annually, to raise awareness of parental
responsibility, how to acquire it and the rights and duties it conveys.
Information should not only be provided mandatorily at the time of signing
the birth register, but should be made available as early as possible
after, or even before, the birth.
v. The Advisory Board considered whether parental responsibility
acquired through joint birth registration should be revocable by the court.
On balance, they thought that it should, one point in favour being that
an unmarried mother might be more reluctant to encourage her partner to
register the birth jointly if she knew that he would thereby acquire parental
responsibility irrevocably. This led to the question whether the courts
should be given a new power to revoke parental responsibility even when
it had been acquired automtically by married parents or an unmarried mother.
Otherwise, there would still be distinction between married parents and
unmarried mothers on the one hand, and unmarried fathers on the other,
which would arguably leave the UK vulnerable to allegations of discrimination
under the European Convention on Human Rights. The Board emphasised that
it did not think it desirable in principle that the parental responsibility
of married parents should be revocable by the court, but put this forward
for consideration because of the ECHR issue.