Who’s the daddy?

Children|September 1st 2012

Families need fathers has become a familiar slogan to those of us who work in family law in recent decades. Fathers’ rights campaigners complain – at times vociferously – that family law is biased against them and that embittered former partners manipulate the system to deny them access to their children.

There may be isolated cases when this could be argued but I cannot accept that this is an accurate picture of the situation as a whole.

But I do agree with the campaigners on one thing at least: fathers are important and they should be closely involved in their children’s lives whenever possible.

What happens, though, if  a child has no legally declared father? Under Section 55A of the Family Law Act 1986, either parent can apply for a declaration of paternity. Most commonly, mothers apply for these in order to establish the father’s liability for child maintenance payments, and as well as making an application through the family courts, declarations of paternity can also be sought directly through the Child Support Agency.

Other possible reasons for seeking a declaration of paternity include disputes over a child’s right to inheritance or property, or divorce proceedings when the man is seeking evidence of a wife’s adultery. Children can also apply for declarations of paternity – for example, an adopted child might wish to add their natural father to their birth certificate.

There can also be a public interest element to more extreme instances. One very recent case involved the 9-year old child of an unmarried couple. The father, who was not named on the birth certificate, was later sentenced to life imprisonment for the murder of a former partner’s mother. He applied for contact and a declaration of paternity.

The original judge refused to make the declaration, claiming that to do so would not be in either the child’s or the public interest. However, this was overturned on appeal, on the grounds the earlier decision had not given sufficient consideration to the public interest – which is favour of children knowing their fathers.

In another recent case – Re F (children: declaration of parentage) [2011] – the biological father of twins applied for a declaration of paternity, as he wanted them to be told that he was their father. The mother and her current partner strongly opposed this.

The court, aware of the delicate nature of the situation, ruled in favour of the father, but ruled that official registration of the paternity (with the Registrar General) would be delayed – from the usual 21 days to four months in order to allow the children to be informed first.

A year later, however, the judge altered this original order, declaring that official registration  of paternity should be delayed until the children were informed that the man was their biological father in four years time. The father appealed, asking for an order that the paternity be registered in just 21 days, in line with the recently introduced Family Procedure Rules 2010.

This appeal was successful, on the grounds that the original judge had confused official registration  of paternity with the welfare issues – i.e. protecting the children from the possibility of accidentally discovering their biological father before they were told. The original ruling in favour of the father was effectively a declaration of paternity.

As the court made clear, paternity is a matter of public record and as such it has to be an accurate representation of the facts. Four months delay was “towards the margin of discretionary exercise” but four years was plainly wrong.

So like it or lump it,  a father is a father for all the world to see – warts and all

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(7)

  1. JamesB says:

    Is ‘Public Interest’ a consideration of the children act and welfare checklist?
    If it is not, then why is it used by the Judges here please?
    (sincere question please, thanks).

  2. JamesB says:

    Unless someone tells me otherwise, such sentiment gives the Judge carte blanche to justify and impose whatever settlement he thinks, regardless of the arguments in law, or what is best for the children by the other ‘experts’ concerned. Therefore my advice is to avoid these places like the plague.

  3. JamesB says:

    By sentiment I mean ruling.

  4. Lukey says:

    ” that family law is biased against them and that embittered former partners manipulate the system to deny them access to their children”
    =================
    We can argue about this, but what is unarguable is that in the vast majority of cases if a man does not sign the marriage contract he is in a much better position all round post-divorce – so the message on how to proceed for men is clear…

  5. Lukey says:

    – I should say post-relationship, it cannot be post-divorce if you are wise enough not to actually marry 🙂

  6. Observer says:

    First of all, sexual discrimination in the family justice system does not happen in isolated cases; it happens en masse. You’d be right to say that the language of justice is neutral, but you’d be forgetting all the social and legal mechanisms that are in place to ensure that dads’ roles are minimized. A judge does not need to be explicit about his/her discrimination therefore, because there are underlying structures of exclusion that predetermine the orders he or she makes. It was similar kind of underlying structures of exclusion that feminists exposed from the 70s onward, when society was laughing at them and denying the reality of sexism, and actually believing that there was no such thing as sexism.
    As for the comment of having to accept fathers warts and all, I don’t think it is in very good taste. Instead of assuming that it is the fathers (instead of mothers) who are always potentially undesirable, why not just point out how lucky a child is to have both parents wanting to be involved in his/her life.

  7. Observer says:

    Is that so hard?

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