We were contacted a while back by someone, expecting their first child and complaining that trying to work out from the web what was their legal position in relation to their expected child [now arrived and doing nicely] was nigh on impossible.

In writing this, we wondered whether there are few guides because it is a right old tangle but we have done our best for other hopeful parents and have broken it down into four chronological stages:

1. Before the child’s birth … and afterwards but before the registration of the birth
2. What changes at registration
3. What changes at marriage
4. What changes at separation

PART 1

Abe is married to Bea. Bea is also in a relationship with See and is having See’s child.

Prior to the birth

The child is not a legal person until born … until this point, no applications for orders could be made in relation to the child – (A v A[1974]).

So:

• If during the early stages, Bea had not wanted some form of treatment but See thought that it would be better for their expected child, See could not make an application to force the treatment (in effect on behalf of the person of the child) because at this stage, there is no person – it would truly be the mother’s choice.
• We know that termination is another minefield as to which see the Abortion Act 1967 but that is a matter for the criminal law not the civil law.
• If, for example See wanted to be at the birth, but Bea wanted him nowhere near, I can’t see how any application could be made about her…

I say “her” because unsurprisingly, the child is to be called Dee and is therefore a girl.

At birth

At birth, the Dee is a separate human being with separate rights.

The mother, Bea has (according to s2(2)(a) Children Act 1989 [‘CA’89]) parental responsibility for Dee, which refers to:

“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”

(It is shorthand for “being a parent” – there is nothing more on the menu to ask for).

Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility (s2(7)).

But the court will expect consultation save where this was not possible (for example, a medical emergency).

The father may have parental responsibility:

• If the father is married to the child’s mother at birth then he has parental responsibility for the child too (s2(1)).
• If the father is not so married then he will acquire parental responsibility because:
  • The mother gives it to him [by filing a parental responsibility agreement s4(1)(b) see here https://www.gov.uk/parental-rights-responsibilities/apply-for-parental-responsibility]
  • The court orders it (s4(1)(c))
  • The father is registered as such (s4(1)(a)Children Act 1989) [the slightly inaccurate shorthand for this is that the father is put on the birth certificate].
  • He and the mother marry and the birth is ‘re-registered’ in accordance with section 9 Legitimacy Act 1976.

There is a presumption that a person married to the mother at any point between conception and birth is the father.

Looking ahead, there are rights for the person with parental responsibility around  change of name, travelling abroad and appointing a guardian for the child in the event of death. The former two are under s13 of the CA’89 and the latter under s5.

The terminology has become clumsy because of label-litigation – the idea of parents feeling that they are not fully recognised unless they have a seal of judicial approval, which the courts are keen to play down. We therefore use the “living with” order as a shorthand for what used to be a ‘residence order’ and refer to a child arrangements order stating that the child is to live with them.

The rules are pretty technical and it is a bit of a labyrinth, but briefly:

• Bea can appoint a guardian to provide for Dee if she dies:
  • But this appointment will not be effective if See has PR until See also dies.
• Bea can probably travel out of the UK:
  • But if See has PR then it is more likely that a court would decide that discussion & agreement (not to be unreasonably withheld) was appropriate; and
  • If she leaves permanently she commits a criminal offence under the Child Abduction Act 1984.
• Bea can probably change Dee’s surname:
  • But that is a major step and so would require See’s involvement if he had PR.
  • Bea can’t do it at all if there have been s8CA’89 orders [broadly where the court has been involved to regulate parenting arrangements then this restriction applies automatically.

So where does that leave Abe and See?  Back in the delivery room, where husband Abe and boyfriend See are circling the crib snarling at each other, the position is also clear:

• The presumption about the husband being the father is simply a presumption … it is rebutted by evidence. Abe isn’t going to get far in asserting his rights over the child with Bea saying “sorry to break it to you Abe but Dee is nothing to do with you.”
• If Abe were to rush to the courts, DNA testing is likely which would prove with – roughly 99.99% certainty that he was not Dee’s father.
• Abe would be able to apply for status in relation to the child but that it is a fairly narrow doorway and it is difficult to see him being let through it unless there is an established relationship between him and Dee for example their living in the same home for some period, so that Dee has become a child of that family (s10(5)(aa)CA’89).
• Meanwhile See actually has merely potential status in relation to the child (because at this point there can have been no gift of parental responsibility, no registration or marriage and See has certainly not made it to court at this point.

Bea may think that she is mercifully free of the men in her life for at least a short while.

• However she does have an obligation to register the birth within 42 days (s2 Births and Deaths Registration Act 1953).
• She may well register See as the father. He will have to attend the registration with her or give Bea a statutory declaration (the former is easier).
• If she does not, See is entitled to make an application under s4(1)(c) for parental responsibility and it is very likely indeed that such an order would be made.

See could also make an application himself to be registered on the birth certificate if Bea had refused to do so or this might be done later by agreement between them … see https://www.gov.uk/register-birth/who-can-register-a-birth

In Part 2 of this blog series, we will look at the concepts of nationality, domicile and habitual residence.

The author James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. James helps clients to take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. For further details, please contact James at E: jp@flip.co.uk, T: 020 7420 5000 or visit James’s website profile here.