APPENDIX 20
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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