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Do parental responsibility laws disadvantage Men?

It could be argued that parental responsibility (PR) laws are long overdue an update given the apparent disadvantages men face when it comes to PR. It seems men are treated unfairly, without good reason, when it comes to PR for children. However, many women would disagree given that men have historically had many advantages over women.

The typical family unit has changed, which in itself warrants a change in PR laws. However, should they be changed because of apparent inequalities in acquiring parental responsibility, particularly for men? It’s an interesting debate.

What is Parental Responsibility?

The Children Act 1989 defines parental responsibility as ‘all the rights, duties, powers responsibilities and authority which by law a parent of a child has in relation to the child and his property.’

Interestingly, the definition does not excuse an individual without PR from their obligation to ‘maintain’ their child.

Why does this matter? Under the law, birth mothers are automatically granted parental responsibility. This is despite whether they are married to the father of the child. Equally, if the father is married to the birth mother, they acquire PR. However, a father not married to the birth mother does not have the same rights.

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Instead, they must acquire PR through other provisions within the Children Act, which is possible by way of:

  • Being named on the birth certificate as the child’s father (on the original certificate rather than being added at a later date)
  • Entering into a PR agreement with the mother allowing him to obtain PR
  • Securing an order from the Family Court granting him PR

Born out of marriage

With more children being born outside of marriage, the number of fathers who will need to acquire parental responsibility is set to rise. While many will be registered on the birth certificate as the father, making it easier to acquire PR, many are not and if the mother doesn’t agree to enter into a PR agreement, they are left at a distinct disadvantage.

When the Children Act 1989 was introduced, the government didn’t include a means to show how the Family Court would determine whether a father could acquire PR through a court order.

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Caselaw was updated to tackle this issue, and the following guidance was introduced:

‘the court would take a number of factors into account, including the degree of commitment which the applicant had shown towards the child, the degree of attachment which existed between them, and his reasons for applying for the order.’

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Claire Holland discusses fathers parental responsibility

Court discretion

Despite the update to caselaw, the court still had discretion over whether a father, not married to the birth mother, could have PR. However, this same discretion cannot not be exercised in the case of a mother or indeed a father married to the birth mother.

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Yet, in some cases, it is important that the court does retain some discretion over an individual being allowed PR – for example if a violent rape has occurred.

St Mary’s Chambers asserts that ‘a child born out of a violent rape by a father married to his mother would not be so protected, and no discretion would be applicable in these circumstances. 

‘By contrast, a child born out of a loving, but non-marital, relationship may have a father who does not have PR because he was never registered, and he doesn’t have the funds or ability to apply to court to acquire PR.’

The apparent disadvantages men face over PR are further illustrated by who can have their PR terminated. The only way that a birth mother can lose PR is if an adoption order is made for a child, this is true for a father married to the birth mother.

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However, a biological father not married to the birth mother who has acquired PR can have that same PR removed through a court order.

In this instance, it can be argued that there is seemingly no justifiable reason for this. Based on this, it can be concluded that there is an obvious inequality between the rights of men and women when it comes to PR.

What’s the solution?

Several suggestions have been made to remedy the apparent inequalities men face in the area of PR.

One of the most commonly suggested solutions is to update the law to stamp out unequal treatment on the grounds of sex or marital status.

Many are calling for the law to be ‘modernised. It remains to be seen whether those calls will be answered.

Thank you to Claire Holland of Holland Family Law for this very interesting article. If you are faced with a parental responsibility issue and need specialist, supportive legal advice contact her HERE – she features in The Hug Directory.

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