Law got it right

Traditionally it was accepted that wives and children were of a secondary status to the husband, although the husband and wife in theory owed joint obligations to each other. The fact that the father was perceived as more of a supreme figure in the family, the power conferred on him meant that the obligations went more or less one way. Legitimate children were subject to the commands of their father, while the mother had no legal rights to interfere. Although this may have been the traditional view, it definitely appears somewhat dated.

Due to female liberation during the 19th and 20th centuries, the position of women within the family has improved considerably. The legal rights of women have become in line with those of men (as married fathers), and have even become to be in a superior legal position compared to unmarried fathers. Who continue to lack automatic rights over their children. 1 It is clear from the Strasbourg jurisprudence that the marriage bond will always give rise to ' family life', including were a bond is legally ended through divorce.

But in the absence of a marital relationship, something more than a blood tie, in itself is required. 2 Perhaps the easiest way of determining whether a non- marital relationship can be said to create a 'family life' is to compare it with the traditional notion of the family established through marriage. 3 The European Court of Human Rights has held that the relationship between parents and child clearly constitutes a bond amounting to family life regardless of whether it is based on marriage. But in order to establish this basis, many factors need to be considered.

Consideration has to be given to the fact of whether the parties live or have lived together, that they have demonstrated commitment to each other by having children etc and the length of their relationship,4 these aspects were considered in X, Y and Z v United Kingdom. 5 However, it was recognised in Keegan v Ireland, that the notion of the family was not confined solely to a marriage – based relationship. Where the parties were living together out side of marriage, it would constitute as a parent child relationship.

The Children Act 1989 is based upon the belief that children are generally best looked after within the family unit, with both parents playing a full role and without resorting to legal proceedings. The Act is primarily concerned with the fact that the welfare of children is of the greatest importance. So why are there such few legal rights for unmarried fathers in relation to their children? Most unmarried fathers wrongly assume that joint registration of the birth certificate means they have legal status as the father, and that, if the mother dies, they will automatically be granted custody of the child.

This would appear to be the most obvious and correct solution, however A report published by the Joseph Rowntree Foundation, concludes that few men realise that they have to apply for a court- registered ' parental Responsibility' agreement or a court order before they can be granted full legal rights. The law in relation to unmarried fathers, in many instances appears to be quite controversial and unjust. The European Court of justice states that the relationship between parents and child clearly constitutes a bond amounting to a ' family' whether marriage is in question or not.

So, why is the law in relation to unmarried fathers so difficult? The Children Act 1989, s 3 (1) provides that " parental responsibility means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property"6 This is the current position on parental responsibility, beyond this is not defined. 7 A starting point in English law is the presumption that a married man is the farther of his wife's children. But there is no presumption in the case of unmarried men, even where they are living with the mother.

Although the inclusion of the mans name on the birth register of the child is evidence of his paternity, an unmarried father cannot insist his name be registered against the mothers will. This is only permitted unless a court has first made an order either for parental responsibility or by imposing financial liability, which would be a means of recognising him as the father. 8 Unmarried fathers today are warned that they do not automatically have legal right to make fundamental decisions about their children's future.

Unless they acquire parental responsibility they cannot consent to a variety of major aspects that are fundamental to their child. At common law a parent has a right to possession of his child 9 and the person who had parental responsibility could require any other person who had the child to hand him or her back. The parental right to possession is a good illustration of the significance of parental rights today. 10 On one hand it is argued that the legal right to possession is of no importance, this can be argued for two reasons.

Firstly the courts at common law would not go against the wishes of a child who has reached the age of 16 (the age of discretion.) Secondly the courts will decide in the best interests of the child, if a dispute occurs in relation to the child's upbringing. The court therefore will not just order the return of the child to the individual who has parental responsibility. It is reasonable to suggest that the use of the word 'responsibility' is more or less a deliberate shift in emphasis away from the focus of 'rights', which is intended to reinforce the view that parents should exercise their powers for the benefit of their children.

However this cannot cloud the legal reality where on one hand, obligations may be imposed on an individual even if he lacks any specific rights. For example an unmarried father is liable to financially support his child, as he is that child's parent. On the other hand it is the issue of parental responsibility giving the rights and freedoms to make the decisions regarding the child's welfare, status and their life choices until they reach the age of discretion. It is this area that has caused such controversy and debate, surrounding unmarried fathers and their children.

The question of how unmarried fathers should be treated in law is surrounded by the debate of whether they should be entitled to parental responsibility and have parental rights or not? 11 At common law the relationship between parent and child was only recognised if the child was 'legitimate', where the child was born or conceived at the time when the parents were validly married. However a child born after a marriage had ended by either divorce or death, recognised in Knowles v Knowles12 is also held as legitimate. It was recognised originally, and previously discussed that the father had the exclusive legal power over his legitimate child.

Section . 2(1) of the Children Act 1989 now provides that where a child's mother or father were married to each other at the time of birth, 13 they shall each have parental responsibility of their child14 and this is to continue with both parents in circumstances such as: Void marriages, Marriage after birth, Adoption and Surrogacy. 15 It is apparent that married parents (both mother and father) enjoy parental responsibility, purely because their child is legitimate. But even then they continue to enjoy it in a variety of circumstances.

The question has to be asked whether the concept of 'legitimacy' is actually all that important? Obviously this is an extremely contentious question to ask, but why is there so much discrimination towards unmarried fathers? Where the parents are unmarried at the time of birth, only the mother has parental responsibility as of right. It is known that the father, in order to receive parental responsibility must either obtain it from the court, have a formal agreement with the mother or if the child is adopted it can be gained by registering the child's birth jointly with the mother.