Family Life Is Defined as a Husband and Wife and Children

The distinction between who is a parent and who has parental responsibility is separate. According to Standley, [6] Parent usually refers as the man whose sperm and the women whose egg together ultimately produce the child. However, some children are bought up by step parents or adoptive parents who do not have biological link to the child. As a result, some men who are biological fathers cannot become the legal father and some other men who are not biological fathers can become the legal fathers of a child. In Re G (Children), [7] Baroness Hale said that parents could be classified as ‘legal’ or ‘nature’ parents. On the fact in B v United Kingdom [8] , the applicant is the ‘natural’ parent where the applicant provides the gametes which produce the child. However, not every ‘natural’ parent can also be the ‘legal’ parent of the child. It depends on whether the parent has parental responsibility.

Next, it is necessary to look at the Human Fertilisation and Embryology Act 1990 which deals with cases of assisted reproduction. This allows for some men who are not genetic fathers to be legal fathers of a child, and other men who are genetic fathers not to be the legal father.

Human Fertilisation and Embryology Acts 1990 and 2008 governs assisted reproductive treatments in the UK. The statutes provide for two situations where a man who is not the genetic father of a child is nevertheless the child’s legal father. In Human Fertilisation and Embryology Act 2008, if a married woman receives assisted reproductive treatment at a licensed clinic, her husband will be the father of the child born, unless he did not consent. [9] This is so even if donated sperm is used and, therefore, he is not the genetic father. In such a case the sperm donor will not be the father of the child born. In addition, this provision only applies to treatment in a licensed clinic. Next, this provision also applies if a woman is in a civil partnership with another woman. Besides that, Human Fertilisation and Embryology Act 2008 also provide that a man can be the father of a child to whom he is genetically related is the child is born following assisted reproductive services at a licensed clinic and the agreed parenthood conditions are satisfied. [10] However, since the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 a child born after the regulations come into effect will be able to ascertain who the donor father was and some information about him

Under the Children Act 1989, parental responsibility defines as a parent of a child who by law has all the rights, duties, powers, responsibilities and authority in relation to the child and his property. [11] More than one person can have parental responsibility for a particular child. [12] When there is a dispute between the persons who both have the parental responsibility for the child, a particular course of action can be make under the Children Act 1989. [13] For an example, removing the child from the United Kingdom, consenting to the child’s adoption, deciding about the child’s education, changing the child’s surname, consent to serious or irreversible medical treatment and consenting to the child’s marriage. Besides that, parental responsibility does not terminate when another person acquires it. [14]

There are some persons who can have parental responsibility without apply for it because statutory provisions provide that they have it. For an example, all mothers automatically have parental responsibilities for their children because she has showed her commitment to the child through pregnancy and has accepted that she will be involved in the care for the child after the birth. [15] Besides that, all father married to the mother of the child also can automatically get parental responsibility. [16]

However, unmarried fathers do not automatically get parental responsibility. [17] They have to apply accordance with the provision under the Child Act to acquire parental responsibility for the child. [18] The unmarried father can acquire parental responsibility for the child by several steps. First, if the unmarried father is registered with the child mother on the child birth certificate, the unmarried father can get parental responsibility. [19] Second, the unmarried father also can acquire parental responsibility for the child by agreement with the child mother. [20] Both of the unmarried parents must register the agreement in the Principal Registry of the Family Division and sign the agreement with the witness present. In Re X (Parental Responsibility Agreement: Children in Care) [21] , although the local authority was strongly against the grant of parental responsibility to the father, the local authority has no power to prevent a mother of a child enter into a parental responsibility agreement with the child father. This is because of the aspect of the right of respect for family life under article 8. Other than that, an unmarried father also can acquire parental responsibility through apply to the court order. [22] The child welfare is the court paramount consideration when deciding whether to give an unmarried father the parental responsibility. [23] In case Re H (Minors) (Local Authority: Parental Rights) (No.3) [24] , Balcombe LJ held that there are three important factors for the court to decide whether to make a parental responsibility order. Firstly, whether the father has show commitment towards the child. Secondly, there must be an attachment between the father and the child. Finally, the court also will look for the reasons or intentions for applying for the order. In case Re S (Parental Responsibility), [25] although the unmarried father unreliability of the money and convicted of possessing obscene pedophilic literature, the court still grant the parental responsibility to the father because the father had shown commitment and attachment to the child. On the other hand, in case M v M (Parental Responsibility), [26] although the unmarried father demonstrated attachment and commitment to the child, the unmarried father still cannot acquire parental responsibility because the mental condition made the unmarried father lacked the capacity to exercise the rights, responsibilities and duties associated with parental responsibility.

A person with parental responsibility cannot surrender or transfer any of that responsibility, but may arrange for some or all of it to be met by one or more persons acting on his or her behalf. [27] This will include another person with parental responsibility. [28] Thus it is lawfully permissible to place the child with a person acting in loco or with someone else with parental responsibility. However, as a person with parental responsibility cannot escape liability under the criminal or civil law by delegating responsibility to another person, [29] the onus is on parents to make proper arrangements for their children.

Parental responsibility is not lost when a child goes into local authority care. It also continues after divorce, dissolution of a civil partnership, or if parents separate. It terminates on the child reaching the age of majority, and on adoption which involves a complete transfer of parental responsibility to the adopters the parental responsibility will be terminating, and in some circumstances by court order. In Children Act 1989, unmarried father who has acquired parental responsibility under s4 (1) Children Act 1989 can be terminate by the court order. [30] In Re P (Terminating Parental Responsibility), [31] the court held that the welfare of the child was paramount in considering whether to terminate the father parental responsibility. However, unmarried mother should not be used as a weapon to terminate parental responsibility of an unmarried father. Based on the fact in B v United Kingdom, the applicant is an unmarried father. Consequently, the applicant does not have automatic parental responsibility and need to acquire accordance with the provision under the Child Act.

In B v United Kingdom, [32] a child was born to out of wedlock in. The applicant, who is the unmarried father, maintained regular contact with the child but no time had a parental responsibility order. The child lived with and was cared for by mother. When the unmarried father applied for a parental responsibility order and contact order, the mother removed the child from England to Italy. In this circumstance, the court observed that the unmarried father parental rights had not been breached when the mother took the child to Italy because the applicant did not have parental responsibility. As a result, the applicant requested the court under the Hague Convention on the Civil Aspects of International Child Abduction 1980. However, the court dismissed the application due to fact that the applicant did not have any formal rights of custody in English law.

Therefore, the applicant sought a declaration of wardship. This would have enabled the applicant to seek an order that child be returned to England and Wales. The court declined to make such a declaration on the ground that child had always lived with the mother and it was inappropriate at that stage to demand that mother should return with him to England and Wales so that the applicant could visit him. The applicant was treated differently from married fathers because he did not have parental responsibility.

Finally, the applicant took the case to the European Court of Human Rights, complaining under Art 14 taken in conjunction with Art 8 of the European Convention of Human Rights that unmarried fathers were discriminated against in the protection given to their relationships with their children by comparison with the protection given to married fathers. In case Inze v Austria, [33] the court held that there is a breach of Article 14 if there had no objective and reasonable justification for the difference situation. On the fact, the court held that there was an objective and reasonable justification for the difference treatment between unmarried fathers and married fathers. As a result, the complaint was declared to be unacceptable because there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers. Besides that, the court only related to the fact that the applicant did not have parental responsibility rather than to the fact that he was not married to the child mother. Furthermore, married fathers who had children in their care to any degree had different responsibilities to unmarried fathers who simply had contact, justifying the difference in treatment between those with parental responsibility and those without. Beevers [34] noted that there was an objective and reasonable justification for this applicant to be treated differently to fathers because the unmarried father had only lived with the child for the first few months of his life and the child is under the mother care all the time. Therefore, the unmarried father in case B v United Kingdom [35] can obtain parental responsibility if there is a longer contact between the unmarried father and the child.

According to Elmalik and Wheeler, [36] there are more than 80 percent of couples falsely thought an unmarried father had parental responsibility. Besides that, when the child need medical operation, the professional person such as doctor also lack of knowledge of the law and ask the consent from the unmarried father who does not have the parental responsibility. Thus, the doctor is acting without lawful authorisation. Therefore, ignorance of the law also found on those professionals other than the parents. Besides that, according to Dey and Wasoff, [37] almost half of the unmarried fathers erroneously believe that they had the parental responsibility same as the married father which have the same rights to make decision on their child medical treatment. Based on their research in 2004 Scotland, there are 98 per cent believe an unmarried father in a long standing relationship with the mother should have the same right as a married father to decide medical treatment. Therefore, the government should let more unmarried father to know their position which is totally different with the married father.

There is a huge different between unmarried father and married father. In case Re M (A Minor) (Care Order: Threshold Condition), [38] although the father murder the mother in front of the child, the father still obtain the parental responsibility. The situation of the case would be change if the father is an unmarried father.

So, there are some arguments against the unmarried fathers to obtain automatically parental responsibility. Firstly, the parental responsibility may be abuse by the unmarried fathers. According to Herring, [39] the unmarried father may spying to check whether the child mother is a good mother without obtain the parental responsibility. Therefore, it does not necessarily for the unmarried father to acquire parental responsibility for justification of the spying. Secondly, some of the unmarried father may claim that their right as the father of the child is violate under the Article 14 of the Human Rights Act 1998. [40] For an example, in case McMichael v United Kingdom, [41] the unmarried father declared that he had been discriminated under Article 14 of European Court of Human Rights because the unmarried father as the natural father had no right to custody of the child. Nevertheless, the complaining was announced to be inadmissible because the aim of the legislation was to discover worthy fathers thereby protecting the interests of the child and mother. Therefore, unmarried fathers which treated in different manner as married fathers are not violated under the Article 14 of European Convention of Human Rights.

Although unmarried fathers are obliged to pay child support under the Child Support Act 1991, they still cannot automatically award parental responsibility. As a result, unmarried fathers are dissatisfied when they suffer the money loss yet still cannot gain the parental responsibility. However Deech has support this argument. According to Deech, [42] when the father is not willing to marry the mother, the father is not showing the commitment to the mother and the child. Therefore, the father should not obtain parental responsibility yet should oblige to bear the child financial support.

Next, according to Conway, [43] if unmarried fathers automatically obtaining parental responsibilities same as married fathers, those situations will boost people to cohabit rather than to marry. Nowadays, the numbers of children born out of wedlock are rising. This is not a good situation for the child because they should live in a secure family unit with their parents. Therefore, if unmarried fathers can automatically obtain parental responsibility same as the married fathers, the benefit of the child will be influence.

According to Bainham, [44] unmarried fathers cannot automatically obtain parental responsibilities because of the rapist father. Bainham held that it is unreasonable for the victim of the rape to appeal court order for removing the rapist father parental responsibility. Therefore, it is better not to give the unmarried father automatic parental responsibility.

In the present English law, the man can easily to prove whether a man has parental responsibility for a child by produce his certificate of marriage with the mother, [45] the child birth certificate [46] and a parental responsibility agreement with the child mother [47] . According to Bainham, [48] if all unmarried fathers get parental responsibilities same as married fathers, it would be impossible to know whether a man claiming to have parental responsibility was or was not the biological father of the child unless biological test were done. The father should acquire parental responsibility is when the child needs a medical treatment by their consent so that the doctor will not acting without lawful authorisation. Finally, if the unmarried fathers obtain automatically parental responsibility, there will be more disputes bringing to the court. This is because when a person who has the parental responsibility makes a decision such as medical treatment of the child, that person will need to get all the consent by the other person who has the parental responsibility to the same child. [49]

There are only little arguments for unmarried father to obtain an automatically parental responsibility. According to Eekelaar, [50] the unmarried father should obtain the parental responsibility if he carrying out a parental model to the child. This could defines as the social position and the legal position of the father would match and the parental responsibility should be seen as the law stamp of approval for the work the unmarried father is carrying out.

The government is aiming to make unmarried fathers recognise their responsibilities to their children and to promote the welfare of children. Therefore, the government makes it compulsory for unmarried fathers to be jointly named on the child birth certificate with the mother. [51] Even so, the birth registration will not be compulsory when it is impossible to identify the child father. It also impracticable if the locations of the father are not known. Finally, the birth registration will not be compulsory if it is unreasonable where the child is gestated by rape or the joint registration would not be in the mother or child best interest. The new provision is laid down in s54 and Schedule 6 to the Welfare Reform Act 2009, but they are not currently in force.

Wallbank [2009] CFLQ 267 is critical of the assumption that child welfare is best served by having two parents with parental responsibility for the child. She says that the White Paper conflates fathers and children interests and the assumption that it will make the father responsible for their child does not necessarily follow on from birth registration. She says: ‘it is highly questionable as to whether any form of meaningful parental responsibility will necessarily ensue as a result’.

Since 1 September 2009 (as a result of amendments made to the Births and Deaths Regulations 1987 by the Human Fertilisation and Embryology Act 2008), female couples have been able to register the birth of their child conceived as a result of fertility treatment, and with both female parents names being included on the birth certificate. These provision apply only to female couples who had fertility treatment on or after April 6 2009.