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Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
Unmarried Fathers and Rights on Birth
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Unmarried Fathers and Rights on Birth

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This paper focuses on the Government’s announced intention to make it obligatory to include the name of an unmarried father on a child’s birth certificate (such registration is currently voluntary …

This paper focuses on the Government’s announced intention to make it obligatory to include the name of an unmarried father on a child’s birth certificate (such registration is currently voluntary and, in the absence of a court order, requires the agreement of both mother and father).

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  • Context of book chapter . Book – tracing the rights/respys associated with fatherhood in English law & policy – tensions, themes, trends. Here – use current reform process as a way of introducing some of those general themes. Book – trace a shift in perceptions of ufs -   Earlier legal reforms often cast unmarried fathers as variously, ‘feckless’, ‘deadbeat’ or ‘irresponsible’ and such understandings persist (albeit subject to challenge) in discussions of child support liability. However, a contrary and increasingly dominant trend is to see unmarried fathers as a group who are more sinned against than sinning. Concern here focuses on the extent to which unmarried fathers are subject to discrimination, potentially vulnerable and a deserving focus of policy initiatives to protect and strengthen their relationships with their children. Thus, while law makers have remained concerned with financial responsibility and the need to protect mothers from fathers’ adverse behaviour, the now dominant trend in family law and policy has been to pay far greater attention to ways of recognising, protecting and nurturing unmarried fathers’ links with their children.   Where both perceptions cohere, however, is in the idea that unmarried fathers, like separated fathers, present a ‘problem’ to be ‘managed’ by law and policy makers, with further reform needed either to force men to accept their responsibilities or to develop the relationships with their children that they want, deserve and are currently unfairly denied. This contrasts with the lack of discussion of the married father in an intact family unit, who, until recent years at least, has been relatively invisible. Further, when the parenting of married fathers has been seen as problematic, for example in the case of the work–life balance debates, this is generally constructed as an issue of structural impediments rather than one of individual behaviour. Reform – proposal to change requirements for birth registration, with aim of getting more unmarried fathers on birth certificate. Discuss aims, rationale for that reform. Declining significance of marriage - historically been a crucial tool for attaching men to children, in a context where 43% of children born outside marriage, collectively viewed as posing quite specific problems for law and policy makers. Research – tracing how law seeks to strengthen links between men & children in a world where marriage no longer seems a good basis for that work. Increasing reliance on genetic link. Hard case – just genetic link & no poss for man to have done more because right at beginning of life. has no possibility to develop that link, or needs some further encouragement or support to do so. How should law react to that – men’s rights (& those of women & children in that context)? Do men have a right to recognition on basis of genetics alone?
  • Significance of birth registration? Confused: Come back to this at the end – unclear whether historical record/statement of current roles BUT NB PR: Before 2001, only married fathers get PR automatically (unmarried fathers could get PRA/PRO). Since 2001, automatic PR. PR – despite name – cluster of decision making rights with regard to a child, gives father status which allows him to be heard when certain key decisions made re a child (e.g. adoption etc). When the decision was made to give unmarried fathers automatic PR to fathers in 2001, one of the justifications given by the Law Commission in introducing this reform, was that this represented an active commitment to family life. What is PR? S. 3(1) CA accords "all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property", incl right to administer a child's property and to take important decisions regarding her upbringing including where she will live, how she should be educated, in what religion she should be raised, and what non-essential medical treatment she should receive. PR also accords the right to be heard regarding a child's proposed adoption or emigration, and to appoint a guardian for her following one's death. A father without PR is not thereby prevented from applying for residence or contact orders, but in practice it seems that PR is often viewed as a first step to obtaining these rights. Further, it is likely that the Government may rely on PR in the future in other aspects of family policy: for example, possession of PR is one criterion to be used in determining who is eligible to apply for parental leave. Even from this brief description, it can be seen that whilst the intention behind the Children Act may have been one of encouraging greater parental responsibility , in practice the impact of the provisions is largely to allocate parental rights (whether exercisable against the state or the other parent) to make certain decisions with regard to the upbringing of children. Reece - increasingly PR is a symbolic status.
  • ‘ The Prob’ in inverted commas – whether or not you see this as a problem is obviously an interesting part of the question.
  • And two further key premises in the arguments put forward by Government in support of reform … For second claim, relying on a US study: Ronald Mincy, Irwin Garfinkel, Lenna Nepomnyaschy (2005) ‘In Hospital Paternity Establishment and Father involvement in Fragile Families’ 67 Jo of Marriage and Fam 611-26. Yet – difficult to apply this in any straightforward way to UK. Practice of paternity establishment v. different; primary purpose of reforms there were to increase child support payments. DWP also commissioned own research to look at who are SBRs. Graham et al (2007) Sole and Joint Birth Registration (DWP, No 463).
  • Government commissioned research – qualitative & quantitative elements. Quant study found the following. Age of mothers – cf married mothers: 30.7 (median 31); unmarried mothers JBR: 26.5 (26); SBRs 23.8. Only 1% of planned pregnancies resulted in sole registration Vulnerable mothers (& presumably vulnerable fathers).
  • Interesting translation into legislation – seems to give more control to mothers. May reflect concern on part of registrars that would shift relationship with mother. Don’t yet know – how this will work in practice – how well women who want to avoid naming a father will be able to make use of these provisions will depend in part on how this is explained to them. Symbolism important . Non-legislative measures. Should also be noted here that the reform has very clear implications for lesbian couple headed families . Lesbians who conceive using donated sperm in a licensed clinic, will not be affected by these reforms and, when the 2008 HFEB comes into effect, provided that certain conditions are fulfilled, both will be able to be named on a child’s birth certificate. However, many lesbian couples choose not to conceive in this way, preferring to use the sperm of a known donor. Often, this is done on the basis that the man will have some level of involvement in the child’s life (Smith??). Currently, if the man is named on the birth certificate, then he will acquire parental responsibility for the child. No discussion in either the Green or White paper about the impact on lesbian families, but they would not appear in an obvious way to qualify under the exempting categories
  • Having sketched out v briefly what reform is about, want to get onto main purpose: showing how reform is located in a number of significant trends in how we think about fathers & appropriate role of Govt in regulating them. Use this reform process to illustrate number of themes that came out of the book. DWP white paper offers a number of reasons. Quite hard to separate out exact reasons – mash of rhetoric – poss because, rightly, govt feel like they are pushing against an open door here. But number of themes. Relate v clearly to the broad trends which we identified in our book.
  • Assumptions - 1. Child wlfr – family law mantra. Elsewhere discussed how has been harnessed in campaign to promote/extend fathers’ rights. Paramountcy of child wlfr is not orthodoxy in family law. (Why? Why not one person to be balanced against others – Reece, HRA?). Is balanced here against concern for vulnerable mothers – expressed in consultation responses – can see in list of exemptions. Interesting that no discussion of vulnerability of fathers – poss impact on them. Can assume that these poorly educated, very young, economically disadvantaged women are likely to be in relationships with men of sim demog profile. child welfare is enhanced by the active involvement of both (genetic) parents; and, law can make a positive difference towards the level of involvement which is likely to be forthcoming, with encouragement and facilitation of JBR being just such an initiative. However, clearly the role which can be played by birth certification in shifting this culture is an empirical question & the government’s empirical basis for assuming this will work is less than robust. ///. They rely here on a US study that pat acknowledgment should improve levels of contact, increase chance of maintenance payment. Can also assist mother in claiming maintenance. Heavy reliance placed on one US study on paternity establishment (and nb that involvement gauged in terms of one overnight stay/one visit in past 30 days – not looking at quality of that interaction). NB some SBR mothers in study explained decn in terms of child’s welfare. Very odd that when talk about positive contribution that paternal influence can make to the well-being of children, cite just two studies from enormous, controversial literature available. And both of these are US studies. Study commissioned by Govt did not recommend statutory change (though did support the non-leg measures).
  • V strong trend towards thinking that knowledge of genetic heritage always in a child’s best interests (esp clear in paternity testing cases). Fits interestingly with debates around removal of donor anonymity. Also seems to assume that promotion of child welfare and right to know genetic facts are the same or, at least, not in tension with each other. Andrew Bainham – CFLQ – v critical of this aspect. Birth registration should not be about welfare, but recording truth. Noted elsewhere, geneticisation of fatherhood. Different factors have historically been important in grounding paternal rights and responsibilities – marriage; intention; commitment to play an active fathering role; genetic links. Part of an increasing tendency to think about fatherhood in genetic terms & assume that genetic info is always in a child’s best interests. Historically, law has placed strong reliance on genetic links but also tried hard to maintain social relationships: marital presumption. Currently, suggested elsewhere that have resolved this dilemma not so much by choosing to prioritise one or the other, but by accepting a fragmentation of fatherhood: best interests of children to maintain relationship with both genetic father and social father (woman’s partner).   Relevance of genetic link - One significant strategy for dealing with this perceived problem, has been to roll out the legal rights & responsibilities typically associated with marriage to those relationships which look most like it: civil partnerships, rights to long term cohabitants. Context of parenthood, various bases on which fatherhood can be awarded, but one major strategy for achieving this end has been ‘geneticisation’ of fatherhood: to accord rights to genetic father, as this seems most clearly to approximate the marital family. Over last 30-40 years, range of legal reforms which have given further rights, responsibilities & recognition to unmarried (genetic) fathers. Controversial what weight we should give to genetic parenthood. One interesting attempt to respond to this normative question in a way that begins from the ethical intuitions of fathers themselves has recently been made by Ives and Douglas. On the basis of extensive focus group discussions with fathers, they suggest that the genetic link has instrumental value in that it gives a special opportunity to develop the morally relevant social fathering role. Parental rights, however, should be acquired on the basis of performing that morally relevant social fathering role.   The problem here is that law has now conflated two things: recognition on a birth certificate and the acquisition of parental rights. And the Government’s stated intention in this reform process is to work with men who are ‘merely indifferent’ to fatherhood to encourage them to get involved with their children.
  • ‘ Right’ – to be acknowledged. What does that mean? Acknowledgment - to accept, admit or recognize something, or the truth or existence of something . So – right suggested here appears to be a right to a formal legal acceptance of genetic link, existence of child. Presumably mean more than that - establishing joint birth registration as a default should help to embed the cultural norm that fathers should approach birth with a clear expectation that they have responsibility for the resulting child. While the Green Paper recognises that this won’t necessarily change the attitude of those who are actively hostile to assuming the responsibilities of fatherhood, it will allow the Government to work to change those with more passive attitudes – who are ‘merely indifferent’ towards joint birth registration.
  • Difficult to see that current reforms are doing anything in terms of a child’s right to be cared for by his/her father. Research base very flimsy on link between birth registration & active involvement. Refusal to see fathers’ responsibilities towards their genetic children in purely financial terms. This reflects an imagery of what has been described as ‘new fatherhood’ – active involvement, not just passive role of payment. Fatherhood as fragile within this – needs to be protected, nurtured, entrenched. NB that this is important theme in book – significance of fathers in terms of caring for children – not just financial contribution. Tension between expectations of fathers. Interesting that genesis of this provision was in review of child maintenance – that later taken out. child’s right to be cared for by father – difficult to see what this reform does for that. PR not about making men care, is about giving men rights
  • World where horizontal relationships become less stable, focus on vertical relationships. Man’s relationship to child should be independent, not mediated through the mother. Treating m fs and ufs the same – novel. V few remaining distinctions (nationality law virtually gone, birth registration – rights consequent on it almost only remaining distinction, HFE Act – does continue to distinguish between mfs/ufs – v. specific historical reasons for that). Virtually no remaining distinctions between married & unmarried fathers. Social science lit suggests that this aspiration of independent rel between parent/child which doesn’t rely on rel with other parent may not always be easily achieved in practice. Juridification of relationships of those who have chosen not to marry. Response to that – relationship not between parents, but between father/child – yet social science research shows v. clearly the difficulties if not impossibilities of a relationship between father/child that isn’t mediated through the mother (primary carer). ‘ In the majority of situations, it is most beneficial for children if both parents are involved in their upbringing. JBR is one of the very first steps a father can take, regardless of the type of relationship he has with the mother. Parents do not have to live together in order for the father to take an active role in the upbringing of their child and JBR can help to build a culture where a father can feel he has a real purpose and stake in his child’s life .’ (2007, 15-16)
  • V real shift in policy/law – vilification of ufs towards construction of them as victims, who are cut out of their children’s lives. Appropriate response is thus one of supporting child’s rights by removing barriers to paternal responsibility. But f ocus here on responsibility, yet impact of this reform will not be to give fathers any greater legal responsibilities – rather it will give them greater legal rights. Also, not clear that here working (just) with fathers who want to take respy – no evidence to suggest that unregistered 7% fall into this camp. Or what obstacles are overcome by this reform. (Conflation of meanings of PR here?). Broad agreement amongst stakeholders that PR should be shared by parents. V. worrying slippage between two meanings of parental responsibility in the document. In fairness, DWP do set out the legal meaning of PR. Yet difficult to believe that this didn’t cause some confusion to respondents. Talk about ‘support from the vast majority of stakeholders for the principle of shared parental responsibility’ … what does that mean? (ch 3, para 25).
  • Also hints at the idea of equality between fathers/mothers – should be treated the same. Said much more explicitly elsewhere. Noted above geneticisation – seems to us that these things are strongly linked. After all, if it is the genetic link which is significant in grounding parenthood, then men’s and women’s contributions are entirely equal, and what justification could there be for giving them anything other than entirely equal rights? ‘ Fathers Direct proposes that mothers and fathers should be treated identically, not as now’ (Consultation response). ‘ The Government considers that it is now time to take steps towards bringing the responsibilities and rights of unmarried fathers more into line with those of unmarried mothers.’ (2008: 25) E.g. DWP analysis of responses to consultation: ‘Those who favoured legislation to require fathers as well as mothers to register a birth did so mainly because there was a feeling that children’s and father’s rights were being put second to those of mothers.’ (2008, 12). Idea of equality in parenting v. interesting & quite elusive. Gender convergence. V significant theme which came out of our book – women’s increased entry into once male dominated public domain of paid lbr, linked to argument that fathers are/should be taking greater role in childcare/dom labour in home, legal context is marked by commitment to formal gender equality. (Q whether this effaces specificity of experience of fathers).
  • V interesting that major legal significance of reform is to extend paternal rights – yet this only gets hinted at in the last line. Gesture towards perceived unfairness that child support liability is automatic/premised on genetic link, yet rights not automatic - need to be earned/awarded/agreed. NB conflation of rights & responsibilities – NLab rhetoric to link, yet often hazy about the rel between the two. Also hints at the idea of equality between fathers/mothers – should be treated the same. NLab govt has been keen to link rights & responsibilities, but this reflects a very specific form of coupling rights and responsibilities. Here thought is not that you gain rights through demonstrating commitment & taking responsibility, but here give rights in order to encourage responsibility. Green paper – said desire was to work with those men who were ‘merely indifferent.’
  • So – some attempt to put the reform in broader context: sees it as part of law adapting to world where marriage can’t be relied on to ground men’s relationship with their children, and the complex renegotiation of men’s relationship with their children that will ensue. Reflect many of the trends which we’ve traced more generally in the fatherhood book. Conflation of fathers’/children’s rights. Legal impact of reform (if any) is to give greater rights to fathers – yet phrased very much in terms of children’s rights. (And poss to make it easier to trace for child support). Would see this reform as such a natural culmination of these kinds of trends in how we think about fatherhood, v likely that will pass. suggest with some confidence that this is going to be passed. Reflection of inexorable logic of relevance of genetics, gender equality, gradual encroachment of marital model – see here PR being granted on basis that signing birth certificate as active commitment to family life, and five years later, talking about extending same rights to men who are merely passive in order to attempt to so engage them. Good thing?
  • Likely impact? if giving PR is likely to encourage more men to get involved with their children in a positive way, sharing responsibility, that’s likely to be welcomed by women as well as children. However: here Government’s evidence base strikes me as less than robust. Findings of the report which they commissioned, clearly to recommend greater information to women/couples, not to recommend legal change. Fits with the kinds of complex decision-making coming out of the qual element of that research, and the concerns for the idea that we’d pressure women at this point esp given the vulnerable nature of many of the women concerned (quant element). Some of the SBRs said that decision was made in the welfare of the child. F ailure to consider impact on lesbian families is particularly noteworthy and particularly unfortunate. Concern for vulnerable mothers? Devil in detail – depends on training of registrars/how approach that interview. More info has to be good. NB Reece – case of Re D as ‘staging post on the way to parental responsibility meaning nothing whatsoever.’ Suggests that PR has moved away from meaning parental authority to legitimation. Describes degradation of status. Suggests that proposal to make PR compulsory for all fathers is ‘inextricably linked to the diminishing parental auth element of PR.’ Suggests that has been clear movement in courts, with earlier cases seeing main reason for PR to give uf decn making power, now reasons less to do with decision making & more to do with feelings/emotions (‘stamp of approval’ – Re S. ‘Compelling almost all fathers to have PR would inevitably mean that those fathers who are unwilling, unavailable or seen as unsuitable to make decisions about the child’s upbringing or otherwise exercise parental authority would be endowed with PR. The fact that the Govt regards this as a desirable outcome indicates the dwindling auth aspect of PR. Indeed, if almost all unmarried fathers are compelled to hold pr then their pr will no longer even imply official approval of them, at least as individual fathers.’ So might be that doesn’t make so much difference in practice. ‘ Maybe, if the Govt proposals to make pr compuls for almost all ufs are implemented, we will see pr come full circle to Eekelaar’s original description of it as meaning nothing more than ‘acting responsibly.’ But if this happens, the phrase will not return to the meaning that Eekelaar ascribed to it, that parents are expected to behave responsibly. Rather, ‘acting responsibly’ will have acquired the New Labour meaning that parents are regarded as needing support to behave responsibly.’ Does seem to me that this reform process does illustrate some of the problems with calling a set of parental decision making rights with regard to children ‘PR’. Here, the net effect of reform is to extend parental rights with regard to children, yet this is presented in a language of responsibility. While the green paper does explain the legal meaning of responsibility, it is unsurprising that many of the respondents to the consultation understand the term in its natural sense and espouse that men should have to take equal responsibility for their actions. [Particularly poor that nowhere set out legal meaning of PR, given that consultation meant also to test popular opinion]   E.g. talk about ‘support from the vast majority of stakeholders for the principle of shared parental responsibility’ … what does that mean? (ch 3, para 25). ‘Along with the Government, [the overwhelming majority of stakeholders who responded to the consultation] recognised that sharing parental responsibility is usually beneficial for both parents and children …’ (2008, para 16). DWP describes the Green Paper as setting out proposals to ‘strengthen parental responsibility’ http://www.dwp.gov.uk/welfarereform/   Third, it should be remembered that an important justification offered for making PR dependent on birth registration was to extend PR to those men who had made an ‘active commitment’ to becoming a father. This was informed by research that showed many unmarried fathers playing an active parenting role yet unaware of their lack of legal rights and therefore failing to obtain PR by Agreement or Court Order. Here, the Government is suggesting that we extend the basis for awarding PR actively seeking to engage those men who are ‘merely indifferent’ to the idea of fatherhood. If extension of PR was done on basis of intentional vision of fatherhood, then intention here is set at a v. low threshold (not actively against), or is really just extending genetic fatherhood rights one step further.   Fatherhood Institute: ‘potentially, the most significant advance in fatherhood policy made by this Government.’ This is not, they suggest because of the requirement that fathers’ names be registered per se but, because ‘in order to achieve this - fathers must be for the first time, acknowledged and addressed directly, by perinatal services.’ This is a ‘golden opportunity moment’ which might have a substantial knock-on effect in terms of fathers’ engagement with services and in their children’s lives. NB also says that find the non-legislative measures are ‘perhaps the most exciting’ part of the proposals. Own briefing note concludes that arguments for/against change in terms of the extent to which positive/negative paternal involvement in children’s lives would be promoted are not conclusive – possible that the proposed system might provide new opportunities to encourage and support strong father-child relationships, we cannot be certain that this is the case’. Also don’t know impact on individual families, no firm evidence that the overall impact would be detrimental to children or mothers; don’t know whether current measures for protecting children and adults from harm are sufficiently effective in families where both parents already have PR. ‘ New Government Legislation Requires Services to Engage with Dads’, E-Newsletter, Fatherhood Institute (18 June 2008, on file with author). See also ‘Should there be a requirement for both parents to be named on their child’s birth certificate?’ Fathers Direct briefing paper (January 2007) 1. Specific issue: register some concern that we are using grant of paternal rights as a way of engaging men with their children. Granting equal decision making rights to a non-resident father whose attitude to his child is ‘passive’ strikes me as rather worrying. NB in debs around PR – idea was that this was a sign of commitment to a child, so changing this to the default position says something about what nature of that commitment is thought to be …? If it were the case that the birth cert were just a matter of recording genetic parentage would be far less concerned about this. Adrienne Burgess – how can it do any harm?
  • Not sure how controversial this is. Men/women, fathers/mothers do have right to equal treatment, but perhaps most significant lesson of feminist legal scholarship would be to pay close attention to context, and suspicion of formally equal rights delivering substantive equality. Complex how to apply in this context. Men/women just not equally situated unless take the genetic link as the only morally significant factor - clearly wrong. Logic of reform is to focus on vertical not horizontal rels : Recognising links between parents/children, even where no longer any links between the parents. Seems to me to be right – no reason to assume that because a couple don’t wish to have a rel with each other, that is no reason to assume that each independently won’t want a rel with a child & be able to give a lot to that child. However, simply not possible that the man can have a rel with the child without having some ongoing rel with the mother – obviously will need to co-ordinate with her and if is really to take responsibility for a child, be jointly involved in decns regarding tmt, school, religion, whatever, then that will involve signif ongoing rel with mother. Jurifidication of the relationships of those who have chosen not to opt into marriage with the legally defined rights and obligations which it entails. Pressure on women to involve fathers – pressure on fathers to be involved.
  • confusion re role of birth registration : social roles or historical record? BRs not just record – also accord rights. Confuses role of birth cert as simple record of genetic fact, and as giving legal rights and responsibilities, and as marker of intention to act as social parent, and as marker of obligation to do so? Individuals have different understandings of symbolic meaning & incorrect understandings of legal role. NLab has been keen to link rights and responsibilities, but this is a very specific form of coupling. The impact of this reform is to grant rights on the basis of a demonstration of responsibility for – or commitment to – a child, but to grant rights in the hope that this will encourage responsibility to be taken. This is not the relationship between rights and responsibilities demonstrated by the fathers in the study by Ives and Draper, cited above. And it is not the understanding which informed at least some of the interviewees in the study commissioned by the Government. E.g. 77. Linked these last two questions – seems to be a v significant degree of confusion about the role of the birth certificate. Is it just a statement of historical (biological) fact, or a forward looking document – stmt of social roles, legal responsibility? Social science research shows lack of knowledge as to whether/why man should be named on birth cert. Good reason for not thinking that historically, haven’t just been used to record biol fact. Other contexts, allowing for severing between biological link & parental social role. So – why seek to impose it here? Disintegration & reassertion of sexual family form? What do we think about the relevance of the genetic link – Jon/Heather – instrumental value (gives opp to develop the morally relevant social fathering role) – but question here is to what extent this should lead to rights, esp when opposed by the mother. Here – conflation of birth registration/PR - profoundly uneasy about using birth registration as a way of working with fathers who are ‘merely indifferent’ to encourage them to get involved with their children.  
  • Context of book chapter . Book – tracing the rights/respys associated with fatherhood in English law & policy – tensions, themes, trends. Here – use current reform process as a way of introducing some of those general themes. Book – trace a shift in perceptions of ufs -   Earlier legal reforms often cast unmarried fathers as variously, ‘feckless’, ‘deadbeat’ or ‘irresponsible’ and such understandings persist (albeit subject to challenge) in discussions of child support liability. However, a contrary and increasingly dominant trend is to see unmarried fathers as a group who are more sinned against than sinning. Concern here focuses on the extent to which unmarried fathers are subject to discrimination, potentially vulnerable and a deserving focus of policy initiatives to protect and strengthen their relationships with their children. Thus, while law makers have remained concerned with financial responsibility and the need to protect mothers from fathers’ adverse behaviour, the now dominant trend in family law and policy has been to pay far greater attention to ways of recognising, protecting and nurturing unmarried fathers’ links with their children.   Where both perceptions cohere, however, is in the idea that unmarried fathers, like separated fathers, present a ‘problem’ to be ‘managed’ by law and policy makers, with further reform needed either to force men to accept their responsibilities or to develop the relationships with their children that they want, deserve and are currently unfairly denied. This contrasts with the lack of discussion of the married father in an intact family unit, who, until recent years at least, has been relatively invisible. Further, when the parenting of married fathers has been seen as problematic, for example in the case of the work–life balance debates, this is generally constructed as an issue of structural impediments rather than one of individual behaviour. Reform – proposal to change requirements for birth registration, with aim of getting more unmarried fathers on birth certificate. Discuss aims, rationale for that reform. Declining significance of marriage - historically been a crucial tool for attaching men to children, in a context where 43% of children born outside marriage, collectively viewed as posing quite specific problems for law and policy makers. Research – tracing how law seeks to strengthen links between men & children in a world where marriage no longer seems a good basis for that work. Increasing reliance on genetic link. Hard case – just genetic link & no poss for man to have done more because right at beginning of life. has no possibility to develop that link, or needs some further encouragement or support to do so. How should law react to that – men’s rights (& those of women & children in that context)? Do men have a right to recognition on basis of genetics alone?
  • Transcript

    • 1. Unmarried Fathers and Rights on Birth Gender and Parenting Culture: Intensive Fatherhood? Cambridge University, 3 April 2009 Sally Sheldon [email_address]
    • 2. Birth Registration – the Current Law
      • Married Parents: share obligation to be registered. Birth can be registered by one parent alone.
      • Unmarried Parents: mother must register birth, father can only be named if both parents consent (and both must attend to register or father must sign a statutory declaration)
    • 3. ‘ The Problem’
      • 43% children born in 2005, were born to unmarried parents.
      • The father is not named in 7% of all birth registrations (16% of non-marital births).
      • 45,000 children each year have no father named on their birth certificate.
    • 4. ‘ The Problem’
      • Further, according to DWP (2008):
      • Children whose fathers are not actively involved in their upbringing are disadvantaged across a range of indicators.
      • Fathers who are named on the birth certificate are more likely to become actively involved with their children (as well as being more likely to pay maintenance).
      • Therefore, the Solution (or at least part of it): to encourage more joint birth registrations.
    • 5. Characteristics of SBRs?
      • Typically:
      • lone parents (89%)
      • little or no connection with the father
      • lower level of educational qualifications
      • younger (39% under 21, median age: 22)
      • strong link with social housing tenure
      • strong link with low income/receipt of benefits
      • strong link with unplanned and unwelcomed pregnancy
      • more likely to live in disadvantaged area
      • lower proportions receiving antenatal care
      • higher rates of smoking
      • lower rates of attempting to breastfeed children
      • ignorance of legal consequences of JBR.
      • Graham et al (2007) Sole and Joint Birth Registration (DWP, No 463).
    • 6. Proposed Reform: new S. 2B, Birth & Deaths Registration Act (1953)
      • Unmarried mother must provide information regarding the father, except where she makes a declaration that:
        • (a)  child is legally fatherless (i.e. AID conception)
        • (b)  father has died,
        • (c)   father’s identity unknown,
        • (d)  father’s whereabouts unknown,
        • (e)  father lacks capacity (within the MCA 2005)
        • (f)  she has reason to fear for her safety or that of the child if the father is contacted in relation to the registration of the birth ...
    • 7. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 8. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 9. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are . In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 10. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 11. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 12. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases , a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents . To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 13. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles . We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 14. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities.’ (2008: para 6).
    • 15. Reasons for Reform?
      • ‘ At the heart of our reforms is a desire to promote child welfare and the right of every child to know who his or her parents are. In most cases, a child’s right to be acknowledged and cared for by his or her father should not be dependent on the relationship between the parents. To support this right we will ensure that fathers who want to take responsibility for their children do not have to overcome unnecessary obstacles. We intend that JBR should play a key part in developing the Government’s determination to develop a culture in which the welfare of children is paramount and people are clear that fatherhood as well as motherhood always comes with rights as well as responsibilities .’ (2008: para 6).
    • 16. Trends in Regulation of Fatherhood
      • Child welfare is always enhanced by presence of father.
      • Child has ‘right to genetic truth’
      • Conflation of children’s/fathers’ rights
      • Direct relationship between child and father (not mediated through mother)
      • Equal treatment of mothers and fathers
      • ‘ Gender convergence’ (fathers as hands on carers)
      • Equal treatment of married and unmarried fathers
      • Support for fathers who want to take responsibility
    • 17. A good reform?
      • Likely impact of JBR on parenting?
    • 18. A good reform?
      • Likely impact of JBR on parenting?
      • Do fathers and mothers have a right to equal treatment (and what does this mean)?
    • 19. A good reform?
      • Likely impact of JBR on parenting?
      • Do fathers and mothers have a right to equal treatment (and what does this mean)?
      • Meaning of Birth Registration? (Relevance of the genetic link?)
    • 20. Unmarried Fathers and Rights on Birth Gender and Parenting Culture: Intensive Fatherhood? Cambridge University, 3 April 2009 Sally Sheldon [email_address]

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