Select Committee on Select Committee on the Adoption and Children Bill Appendices to the Minutes of Evidence


Memorandum submitted by the Solicitors Family Law Association (SFLA)

  The Solicitors Family Law Association is an association of over 5,000 solicitors who are committed to a Code of Practice which promotes the welfare of any children as the paramount concern in family law matters. The primary objective of the SFLA approach is to achieve a constructive settlement of disputed issues in a way which avoids protracted arguments and promotes co-operation between parents in decisions concerning children. Parents are encouraged to co-operate when making decisions concerning a child and are urged to agree arrangements themselves, through mediation or through their solicitors, as a more positive alternative to a court hearing.

  Solicitors Family Law Association members collectively have a great deal of experience in Adoption and Children Act proceedings, which we are happy to make available to the Select Committee as it considers the provisions of the Adoption and Children Bill.

  In this submission, we will focus on the Bill's provisions on parental responsibility for unmarried fathers. We would like to highlight a number of potential difficulties with the proposals and offer some suggestions on how they could be improved.

Clause 91 The Parental Responsibility of the Unmarried Father

  In response to the Government's consultation paper on Court Procedures for the Determination of paternity and the Law of Parental Responsibility for Unmarried Fathers in March 1998, the SFLA recommended that the current law should not be changed. Having considered the matter afresh, this remains our view for the reasons outlined below.

  1.  The Children Act 1989 introduced the concept of parental responsibility with its emphasis on the responsibility of bringing up a child and not on parental rights to do so. The exercising of parental responsibility can impact on the whole of a child's life—where the child lives, who s/he has contact with, his/her education and religion, the medical care s/he receives and any number of matters which can be considered as specific issues under the Children Act. It is an important legal status in relation to a child and deserves careful consideration.

  2.  When the Children Act was enacted, automatic parental responsibility was restricted to mothers and married fathers to protect the interests of vulnerable unmarried mothers and their children, especially where those children were born as the result of violent or coercive relationships. SFLA believes that this remains an important concern.

  3.  The existing law provides a framework which meets the needs of all families. A commitment to the children born of the relationship is implied on the part of married fathers. Given the wide variety of relationships between unmarried couples, this cannot be similarly assumed in relation to unmarried fathers. This rationale was held to justify the distinction in cases brought to the European Court of Human Rights.

  4.  For those couples whose relationship is close and stable, the unmarried father can acquire parental responsibility by agreeing to share it with the mother. If a couple decide to marry, the father will acquire parental responsibility at this point. Where the parents remain unmarried and cannot agree, the unmarried father can acquire parental responsibility by court order, subject to it being considered to be in the interests of the child concerned. We believe that this is an important safeguard, considering the great significance of holding parental responsibility for a child.

  5.  The Solicitors Family Law Association believes that the proposal to award parental responsibility automatically to those fathers who jointly register the child's birth is an initiative which could prove more problematic than the problem it is seeking to address.

  6.  The decision to appear on a child's birth certificate is important and valuable in that it enables a complete record of a child's parentage. It is however, entirely different in its nature to one concerned with a long-term commitment to parenting a child.

  7.  Most mothers register their child's birth within a few weeks of birth. Where, on reflection, there may be strong grounds for not awarding parental responsibility to the father, these may not be considered fully before registration of the birth. Some mothers may be vulnerable to influence which is hard to resist at a time when they are recovering from the birth and adjusting to parenthood. While decisions relating to the adoption of a child are not valid during the first six weeks after birth, it seems perverse that something as important as awarding parental responsibility could result from a routine procedure which must take place in this sensitive period.

  8.  The automatic awarding of parental responsibility will obviously remove the opportunity for the courts to determine whether it is in the best interest of the child. When considering applications for parental responsibility from unmarried fathers, the courts take into account the degree of commitment the applicant has shown the child, the degree of attachment between father and child and his reasons for applying for the order. All the relevant circumstances are taken into account to decide whether it is in a child's best interests. Where a father's motivation is "demonstrably improper and wrong" or where a father intends to use his parental responsibility to interfere with or undermine a mother's care, the court has discretion to refuse to grant parental responsibility.

  9.  If the law is changed, and it is not enacted retrospectively, there will be two completely different procedures in operation depending on when the child was born. This may appear both confusing and illogical.

  10.  As the Children Act provides a simple route for unmarried fathers to acquire parental responsibility by agreement, it is disappointing that so few have taken advantage of it. We would argue, however, that this has probably resulted from very low public awareness of this option and the importance of parental responsibility, rather than a failure of the legislation.

  11.  In keeping with SFLA's ethos, we support the promotion of parental responsibility agreements, where the awarding of parental responsibility is in the interests of the child. An agreement arrived at, with full consideration of the implications and how parental responsibility might be exercised, remains the best way for unmarried parents to share responsibility for their child.

  12.  More could be done to raise awareness of this important issue in communications with new parents—through applications for child benefit, the health visiting service and the wide range of media aimed at new parents.

  13.  An enhanced role for registrars in giving information about making agreements could go some way to achieving the objective of improving levels of "take-up". An effective and targeted awareness campaign would provide each parent with the information to make their own positive decision in relation to their child. The SFLA would, of course, be willing to support and participate in such a campaign.

  I hope these comments are helpful to the Committee in its deliberations. If it would be useful, I am willing to expand on the points above in evidence to the Committee.

May 2001

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