Parental responsibility FOR UNMARRIED FATHERS: LAW DRAFTING INSTRUCTIONS
- Introduction
1.1. This document sets out the detailed policy instructions to the Law Draftsman to amend the Children (Jersey) Law 2002 (the “2002 Law”) to enable the automatic conferral of parental responsibility on unmarried fathers. These instructions provide background to the relevant Jersey law and present the policy rationale and an overview of the human rights case for the proposed amendment.
- Background
2.1. Under Jersey law there are a number of ways in which an unmarried father, who is the stated biological father of the child, can be named on a child’s birth certificate. These include:
- requesting his registration on the birth certificate with the mother, or
- seeking registration, at his own request, on production of parental declarations made by the mother and him[1].
This does not, however, automatically confer the unmarried father with parental responsibility. In order to acquire parental responsibility an unmarried father must either:
- apply to the Court for an order or
- the mother and father may by agreement provide that he shall have parental responsibility for the child[2].
This position is out of step with the approach in the UK where an unmarried father will acquire parental responsibility if he becomes registered as the child’s father[3].
2.2. In September 2015 the States Assembly debated a proposition lodged by the Chief Minister entitled ‘Same-sex marriage, divorce and dissolution’ (P.77/2015), part of which concerned reforms to parental responsibility[4]. The States agreed in principle that “legislation should be amended to automatically confer parental responsibility on unmarried fathers who are named on birth certificates”.
2.3. P.77/2015 also set out the need to consider providing for (i) same-sex couples who are married or in a civil partnership to automatically be conferred parental responsibility; and (ii) for unmarried same-sex couples to be conferred parental responsibility in certain circumstances.
2.4. It was envisaged that the legislative amendments necessary to achieve the proposals set out in P.77/2015 would be brought forward in the first quarter of 2017. The Health and Social Services Minister (the “Minister”) has, however, determined that the changes relating specifically to the automatic conferral of parental responsibility on unmarried fathers should be progressed as soon as possible, ahead of reforms relating to parental responsibility for same-sex parents, which will continue to be developed along with the remainder of the proposals in P.77/2015[5].
2.5. It is understood that it is generally undesirable to bring forward staggered amendments to primary legislation, however, the Minister believes that this matter should be addressed as a priority due to the ongoing and immediate distress caused to some unmarried fathers. Moreover, the issue is a growing problem in Jersey as increasingly more children are born to unmarried parents - approximately 40% of children born in Jersey have unmarried parents[6], and as shown by the increase in parental responsibility agreements (“PRAs”) recorded by the Family Court.
No. of PRA’s recorded by the Family Court
2005 | 14 |
2006 | 33 |
2007 | 51 |
2008 | 37 |
2009 | 25 |
2010 | 46 |
2011 | 54 |
2012 | 48 |
2013 | 54 |
2014 | 48 |
2015 | 63 |
2016 – to date | 9 |
- European Convention on Human Rights (ECHR)
3.1. The proposal to bring forward amendments which would confer automatic parental responsibility on unmarried fathers, ahead of changes relating to parental responsibility for parents in same-sex relationships, carries with it human rights issues that are particularly sensitive.
3.2. Article 8 ECHR provides for the right to family life, which extends to matters relating to parental responsibility and Article 14 ECHR provides for the right not to be discriminated against, including on grounds relating to marital status or sexual orientation for example. The right not to be discriminated against in the enjoyment of the rights guaranteed under the ECHR is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification[7].
3.3. Accordingly, a key question in any Article 14 ECHR analysis is whether the relevant comparators are, in fact, in analogous positions. In the present context, those comparators are unmarried fathers who are the stated biological father and same-sex (or non-biological) parents. The argument that the proposal to ascribe automatic parental responsibility to unmarried fathers only would be discriminatory against same-sex parents is based on the premise that the positions of these comparators are analogous.
3.4. The Law Officers have advised that, while there are numerous examples of cases involving an Article 14 ECHR determination of matters relating to sexual orientation or marital status, there is an absence of direct legal precedent on the Article 14 ECHR assessment of biological fatherhood which is relevant in the present context. Notwithstanding this, the Law Officers have advised that a case can be made for contending that the situation of a biological father of a child and a non-biological (same-sex) parent are not analogous.
3.5. This argument is based, in part, on favourable comparative precedent in ECHR case-law –
3.5.1. Hulsmann v Germany[8] involved a paternity dispute before the German courts in which the applicant, the presumed natural father of the child in question, contested an acknowledgement of legal paternity granted to another man, the husband of the child’s mother. Before the ECtHR, the applicant claimed that he and his child constituted a ‘family’ for the purposes of Article 8 ECHR and the German court’s refusal to grant him access rights was a violation of his right to family life. Relying on Article 14 ECHR, read in conjunction with Article 8 ECHR, the applicant further claimed that, being a natural father whose paternity was not acknowledged, he had been discriminated against compared to parents and extended family members who, under German law, were permitted access to the child. In dealing with the complaint under Article 14 ECHR, the ECtHR held that the applicant, in his position as the presumed natural father of a child with whom he never lived, did not find himself in an analogous situation compared to parents whose paternity had been legally established or compared to persons who have lived in domestic community with the child concerned for a long period. In essence, the ECtHR considered that a father whose paternity had not been established was not comparable to a father whose paternity had been established, and therefore a complaint that a difference in treatment between them was in violation of Article 14 ECHR was ill-founded.
Odievre v France[9] involved an applicant who had been adopted after being abandoned by her natural mother, who had requested that the birth be kept secret. The applicant wanted to find out about her personal history but was denied access to identifying information about her natural family. The applicant complained that the fact that her birth had been kept secret, with the result that it was impossible for her to find out about her origins, amounted to a violation of her rights under Article 8 and 14 ECHR. Her Article 14 ECHR complaint was that she had been discriminated against on the ground of birth. The ECtHR held that the applicant had suffered no discrimination with regard to her filiation as she had parental ties with her adoptive parents and a prospective interest in their property and estate; and she could not claim that her situation with regard to her natural mother was comparable with that of children who enjoyed established parental ties with their natural mother. Accordingly, there had been no violation of Article 14 ECHR taken together with Article 8 ECHR.
3.6. These cases can be utilised in the present context to illustrate that the ECtHR acknowledges that certain factors associated with parenthood, such as paternity and parental ties, give rise to non-analogous situations for the purposes of the Article 14 ECHR assessment.
3.7. Elsewhere, the significance of the position of the natural father, and the distinction of that role from other forms of parenthood, has been acknowledged by the House of Lords in a family law context. In re G (children) (FC)[10] involved a child residency dispute between a lesbian couple where one partner was the natural parent of the children involved, having conceived through artificial insemination. In the leading judgment, Baroness Hale explored the significance of various forms of parenthood, one of which was the ‘genetic parent’, being the parent who provides the gametes which produce the child[11]. That judgment noted the deep significance of the genetic parent on many levels –
“For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child…For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.”
3.8. Baroness Hale went on to compare genetic parenthood with ‘gestational parenthood’, i.e. being the mother of the child, and ‘social and psychological parenthood’, i.e. providing for and nurturing a child, a form of parenthood which includes the role played by ‘non-genetic/gestational’ parents, such as adoptive parents. In comparing these forms of parenthood it was noted that, in addition to the natural mother, the “natural father combines genetic and psychological parenthood. His contribution is also unique”. These comments illustrate that there are elements of the genetic parenthood, provided by the natural father, which are distinct and unique from purely social and psychological parenthood, which would include the form of parenthood offered by a same-sex partner.
3.9. In the present context, the ECtHR cases noted above and the comments of Baroness Hale in In Re G support the case for contending that the genetic or biological link which a natural father possesses with his child, and resulting familial and legal ramifications of that link, should, from an Article 14 ECHR perspective, be considered a further aspect of parenthood in which a robust distinction with a same-sex parent can be drawn. This distinction, in the context of acquiring parental responsibility, can then be argued to manifest itself in the following way–
3.9.1. An individual who is the natural father of a child and who is recognised on the birth certificate as the child’s father has, by reason of his biological link to the child, a right to establish parental responsibility for that child which is on par with that of the mother of the child. A same-sex prospective parent who has no biological link to the child cannot, without more, claim to have a similar right.
3.9.2. Under present circumstances, it is the case that biological fathers assume that being named on the birth certificate automatically confers them with parental responsibility, and it is only once their relationship with the child’s mother breaks down that they realise this is not the case. It is arguable that a same-sex prospective parent could not claim to be ‘deceived’ by the operation of the law in this way. In their case, it must reasonably be assumed that the acquisition of parental responsibility will require the completion of a formal legal process[12] as prospective same-sex parents do not have a biological link to the child on which any assumption of parental responsibility could be made.
3.10. These factors illustrate that the factual and legal realities of being an unmarried father in the context of parental responsibility are quite different to those faced by a prospective same-sex parent. From an Article 14 ECHR perspective, these factors are sufficient to establish that unmarried fathers and same-sex prospective parents (i.e. non-biological parents) are not in an analogous situation, just as those fathers with legal paternity and those without, and children with established parental ties and those without, are equally not considered by the ECtHR to be in an analogous situation. As a result, it is the Law Officers view that, on balance, an argument that the proposed amendment would be discriminatory and in violation of Article 8 ECHR read in conjunction with Article 14 ECHR would not succeed. The Law Officers have confirmed that there are no other provisions of the ECHR which are engaged by the proposed amendment.
- Instructions
4.1. The Law Draftsman is asked to amend the 2002 Law so that a father, who was not married to the child’s mother at the time of the child’s birth, will acquire parental responsibility for that child provided he is named on the child’s birth certificate[13]. The intention of this amendment is that it should remove the requirement for an unmarried father to acquire parental responsibility through the processes in Article 5(1) of the 2002 Law, i.e. by a parental responsibility agreement entered into with the child’s mother or by order of the Court.
4.2. Where an unmarried father is not named on the birth certificate, he should continue to be required to either enter into a parental responsibility agreement with the child’s mother or obtain a Court order. This provides an important safeguard in certain circumstances, for example where a child has been conceived through rape.
4.3. For comparative purposes, the Law Draftsman is guided to section 4 of the Children Act 1989, which was amended by section 111 of the Adoption and Children Act 2002 to substitute a new section 4(1) enabling unmarried fathers to acquire parental responsibility for the child if the father becomes registered as the child's father under any of the specified enactments.
4.4. It is not intended that the proposed amendments should have retrospective effect, so unmarried fathers who are already named on birth certificates at the point at which this amendment comes into force will not automatically be conferred parental responsibility. They will have to acquire it in accordance with the processes already provided for in the 2002 Law. This is because of concerns expressed by the Jersey Family Liaison Service that retrospective application could potentially result in claims from unmarried fathers on the basis that the mothers had taken actions, with regard to children, that did not account for the father’s parental responsibility. In addition, there are concerns that retrospective application could potentially cause unintended complications in relation to ongoing child care proceedings.
Consequential amendments
4.5. The following amendments to legislation will also be required as a consequence of the proposed amendments to the 2002 Law –
4.5.1. Adoption (Jersey) Law 1961: Article 12B of the 1961 Law sets out procedures in relation to the revocation of Court orders declaring an infant free for adoption. Article 12B(3) extinguishes an order under Article 12 giving the Minister’s parental responsibility for the infant and revives the parents’ responsibility. This currently includes the father’s parental responsibility if he was married to the mother at the time of the infant’s birth, or if there is a parental responsibility agreement in place, or a Court order providing the father with parental responsibility. This Article needs to be amended to also include unmarried fathers, who are named on the birth certificate after the amendments to the 2002 Law comes into effect.
This is distinct from unmarried fathers who were named on the birth certificate at the point at which the freeing order is revoked, as this could extend to unmarried fathers named on the birth certificate prior to amendments to the 2002 Law who, as per 4.4 above, who it is not intended should be retrospectively granted parental responsibility.
4.5.2. Adoption Rules 1962: Schedule 1 to the Rules sets out Form No.1 [Application for an adoption order]. Note 19 to that form explains how an unmarried father may have acquired parental responsibility, which currently would be by marriage to the child’s mother or by parental responsibility agreement or a Court order. This note to the Rules will need to be amended to also include unmarried fathers, who are named on the birth certificate after the amendments to the 2002 Law comes into effect. It is understood that amendments to court rules will be dealt with by the Law Officers’ Department.
Birth certificate The Marriage and Civil Status (Forms, Registration and Fees) (Jersey) Order 2002 sets out the form of birth certificates. For the purposes of automatically conferring parental responsibility on unmarried fathers, who are the stated father, no changes are required. Future changes will be required however to accommodate changes in relation to same-sex parents who are married/in a civil partnership or who are unmarried. |
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