Birth certificates after the death of a parent: Marilyn Stowe on BBC Radio 4

Today, I joined Winifred Robinson on BBC Radio 4’s You and Yours programme to discuss the issue of birth certificates when one of the parents has died before the child is born.

The conversation was prompted by a very sad case of an unmarried father dying tragically and suddenly before the birth of his baby. The mother tried to register the birth of her child but ran into a problem: she was unmarried. As such, she was unable to register her deceased partner as the father of their child even though the paternal grandparents attended the registration to confirm that paternity was undisputed.

Under current law, a married parent can register both the mother and father’s names on a birth certificate even if their partner is not present. There is a legal presumption that the spouse is the parent. An unmarried partner must either sign the birth certificate or if not present, must complete a statutory declaration of parentage. This will enable the birth to be registered or re-registered if it has previously been registered with only one parent.

If one unmarried parent dies before the birth of their child can be registered, Section 55A of the Family Law Act 1986 takes over and requires an application to the Family Court for a Declaration of Parentage.

The application form is 12 pages long and I have to say I didn’t find it at all easy to understand and it doesn’t set out what needs to be done next. With that in mind, I’m pretty sure a litigant in person would also have trouble completing it and finding out what happens next especially if the local court doesn’t encourage counter visits.

In reality, a court would set a date for a directions hearing, which is the first opportunity a judge gets to assess the case. The court would most likely order statements from relevant people, such as the mother and paternal grandparents, and a DNA test. Then there would be a further hearing when the order would be made. Within 21 days of the order, the Registrar would receive the order and reregister the birth, and issue a further birth certificate with the deceased named  as the child’s legal father.

Court fees for such cases are currently £365 (which might be remitted in appropriate financial circumstances). However, they do not include the cost of a DNA test which could easily add another £150 or so to the bill. Nor do they include the services of a lawyer which could be very much more money on top depending on the quote given by the lawyer instructed, especially since the abolition of legal aid in 2013.

This is yet another situation which could be quite easily rectified by the restoration of legal aid. Twenty years ago, this situation would have been fixed with very little effort. Once the surviving parent had received legal aid to secure a lawyer, the case could go ahead without the worry of cost or what to do next hanging above their head and the lawyers would simply do the job they were trained to do.

But, in a post-legal aid world, why is there currently such an anomaly between the situations? When an unmarried couple are both alive a statutory declaration is sufficient for registration of parentage even if that parent is not present at the registration. However, when one parent is dead but it is nevertheless possible to provide irrefutable evidence of parenthood via a DNA test, why is it necessary to go to court at such expense?

I think the answer is that society has changed quite significantly since this legislation was passed. Today, many more children are born to unmarried parents than in 1986. As a result, cases like the one I discussed today are more common than you might imagine – as appears to be the case from the programme. However, the numbers are not so overwhelming that fraud is a real possibility.

With that in mind, and given this is a remediable fallout from the abolition of legal aid, why not consider an amendment to the administrative process? The President of the Family Division, Sir James Munby, is already suggesting that the same be done with divorce, so why not this too?

When there is irrefutable DNA evidence to support a mother’s claim that her unmarried partner was the father of her child, and the application is not contested, confirming parentage could easily be a job for the registrar to deal with by statutory declaration, rather than the Court.

Where the matter is demonstrably more complex, for example where fraud is suspected, or paternity is contested by the family, or nationality, immigration, jurisdiction is involved, (all matters referred to in the application form) it would be automatically referred to the Family Court: as contested applications under the child support regime already are.

To listen to the full discussion, click here. The segment begins at 8:05 and my interview starts at 13:50.